N11171
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 1441 OF 2017

BETWEEN
JACOB POPUNA, in his capacity as PUBLIC CURATOR & OFFICIAL TRUSTEE OF PNG under the letters of Administration issued dated 31st March 2017
Plaintiff

AND
LUCY ANJO
First Defendant

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

AND
OSWALD TOLOPA, ACTING SECRETARY FOR DEPARTMENT OF LANDS & PHYSICAL PLANNING
Third Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

WAIGANI: MAKAIL J
10 MARCH, 5, 6 APRIL 2022;10 MARCH 2025

STATE LEASES – State Lease – Residential lease – Dispute to title of registered proprietor – Fraud – Actual fraud – Forgery of signature of deceased on contract of sale of land – Element of dishonesty – Mens rea – Actus reus – Poof of – Fraud inferred from conduct of registered proprietor – Land Registration Act – Section 33(1)(a)

Cases cited 
Mudge v Secretary for Lands [1985] PNGLR 387
Emas Estate Development Pty Limited v John Mea & Ors [1993] PNGLR 215
Koitachi Limited v Walter Schnaubelt (2007) SC870
Maso v Ume (2021) N9122

Counsel
Mr M Koimo for plaintiff
Mr F Yapao for first defendant
Mr R Kebaya for second, third & fourth defendants

JUDGMENT

1.	MAKAIL  J:   Acting on behalf of the estate of one Senior Lincoln Taru (“the deceased”) pursuant to letters of administration granted on 31st March 2017 the Public Curator brings this action against the defendants for fraud on a title of a property described as Section 21 Allotment 37, Boroko, National Capital District and registered as State Lease Volume 5, Folio 1051 (“Property”) to the first defendant.  It seeks, among others, an order that the first defendant’s title be set aside pursuant to Section 33(1)(a) of the Land Registration Act and a further order that the property be transferred to the estate of the deceased to be under its administration.

Allegations of Fact

2.	The following is a summary of the allegations extracted from the statement of claim which the Public Curator makes against the defendants:
•	the deceased entered into a contract of sale with the Investment Corporation of Papua New Guinea (“ICPNG”) on 28th August 2001 to purchase the property. 

•	the first defendant and her husband Johnson Anjo Tolabi (“Johnson”) financed the purchase price and took possession of the title after settlement, but the owners copy went missing.

•	as a result, the transfer and registration of the title to the deceased was delayed until a replacement title was issued.

•	at all material times the deceased did not agree to sell the property to the first defendant.

•	on 14th October 2003 the deceased did not sign the second contract of sale, but the first defendant forged the deceased’s signature by signing a second contract of sale to purchase the property from the deceased.

•	it was a simultaneous transfer, first from ICPNG to the deceased and second, from the deceased to the first defendant. 

•	on 30th August 2011 the deceased died.   

•	subsequently, around August 2012 the first defendant entered into a third contract of sale by oral agreement to sell the property to BKW Group of Companies Limited in the sum of K2.5 million and received a sum of K250,000.00 as 10% deposit.  

•	at all material times, the first defendant was not the registered proprietor.  

•	it was only after a second replacement title was issued by the second defendant on 18th January 2013 because the replacement tile was destroyed by fire on 14th July 2011 that the transfer of title from the deceased to the first defendant was registered on 18th January 2013.

•	the transfer and registration of title to the first defendant as the sole registered proprietor is contrary to the second contract of sale because the first defendant and her husband are joint purchasers, but the first defendant was registered as the sole registered proprietor.

•	the lawyer from Waner Shand Lawyers did not witness the execution of the second contract of sale as lawyers for the first defendant and her husband.

•	the first defendant paid a sum of K48,000.00 as Land Lease Rentals on 11th September 2012 when she was not the registered proprietor of the property.

•	 the second replacement title was unnecessary because there was a prior replacement title issued to ICPNG on 24th July 2002 on the application of Posman Kua Aisi Lawyers.

•	the Deputy Registrar of Titles Mr A Lake did not sign the title entry S62646, S62647 and S62657 on the title instrument “OFFICIAL COPY” and “OWNERS COPY”.

•	three different certificates of titles disclosed discrepancies in the entries between 24th July 2002 and 18th January 2013 by the second defendant’s predecessors.

•	at all material times the ICPNG was the registered proprietor of the property.  The transfer and registration of the title from the deceased to the first defendant on 18th January 2013 was a fraud because the deceased was not the registered proprietor.

•	the above allegations of fraud were not disclosed in defence to the judicial review proceedings OS (JR) No 334 of 2013: Lucy Anjo v Henry Wasa, Romily Kilapat & The State and the National Court ordered the title be restored to the first defendant.

•	similarly, the same allegations of fraud were not disclosed in the proceedings WS No 185 of 2016: BKW Group of Companies Limited v Lucy Anjo and Henry Wasa for the return of K250,000.00 paid as 10% deposit for the sale of the property to BKW Group of Companies Limited (“BKW Group”). 

•	as a result, the parties in that proceedings in a mediation agreed to recognise the first defendant as the registered proprietor of the property by signing a Deed of Settlement and Release dated 24th November 2016. 

Public Curator’s Evidence 

3.	The Public Curator relies on the evidence of three witnesses. 
(a)	Lincoln Taru Junior (“Junior”)
o	this witness tendered three affidavits, one sworn on 15th January 2019 and filed on 30th December 2019 (exhibit “P1”), second, sworn on 19th February 2019 and filed on 20th February 2019 (exhibit “P2”), and third, sworn and filed on 5th November 2021 (exhibit “P3”).

o	the content of his three affidavits can be summarised as follows; that he is the third born son of the deceased.  The deceased was the former Deputy Managing Director of ICPNG.  ICPNG was the original registered proprietor of the property.  He was living with the deceased on the property.  

o	ICPNG offered the property for sale to the deceased on 10th May 1999.  The deceased accepted the offer by way of a letter dated 11th May 1999.

o	on 28th August 2001, a contract of sale was executed between ICPNG and the deceased through Posman Kua Aisi Lawyers.

o	the first defendant and Johnson were friends of the deceased.  They assisted the deceased to fund the purchase of the property because the deceased did not have money at that time.

o	settlement and transfer did not take place because the owners copy of the State Lease (title) with ICPNG was missing.  Posman Kua Aisi Lawyers as lawyers for ICPNG applied for a replacement title and one was issued on 24th July 2002.

o	settlement took place in or around 20th September 2003.

o	the first defendant and Johnson as financiers of the purchase price of  the property took possession of the title which had ICPNG as the registered proprietor.  The replacement title was subsequently destroyed in a fire on 14th July 2011.

o	the deceased died on 30th August 2011.  Subsequently, the Public Curator took charge of the deceased’s estate pursuant to letters of administration granted on 31st March 2017.

o	he was informed by the deceased that the deceased did not sell the property to the first defendant and Johnson.  Because of this, the deceased did not sign any contract of sale with the first defendant and Johnson.  

o	the second contract of sale dated 14th October 2003, and the transfer instrument dated 14th October 2003 are a fraud because the second contract of sale referred to the first defendant and her husband as joint owners/purchasers, but the transfer instrument refers to the first defendant as the sole transferee/registered proprietor.

o	in early January 2013 Johnson gave him a call while he was working in the Public Curator’s Office at the Department of Justice and Attorney-General and enquired about any property for sale in the deceased estates under the care of the Public Curator. 

o	he met Johnson outside the office car park, and they drove off in a motor vehicle driven by Johnson.  Inside the motor vehicle, Johnson told him to sign a contract of sale on behalf of the deceased.  He refused and Johson went ahead and signed it by forging the deceased’s signature.  He was surprised that the signature resembled the deceased’s signature.

o	secondly, the first defendant proposed to sell the property to BKW Group in the sum of K2.5 million in August 2012 after the death of the deceased, but she was not the registered proprietor.

o	the BKW Group paid 10% deposit of K250,000.00 to the first defendant.  

o	the first defendant applied for a second replacement title, and one was issued on 18th January 2013.

o	following that the first defendant and Johnson forcefully evicted the deceased from the property.

o	the second contract of sale was dated 2001 but figure one was crossed out and figure three was written in its place with a biro.  It was done to look like the deceased signed it in 2003, but he did not.

o	according to the Police Forensic Report dated 20th February 2017, the signature of the deceased is a simulated forgery of the signature.

o	the postal address of the deceased used on the second contract of sale was the same address as the first defendant with PO Box 2505 but crossed out and changed to 1986.

o	no lawyers from Warner Shand Lawyers witnessed the execution of the second contract of sale as lawyers for the first defendant and her husband who drafted it.  The parties to the second contract of sale witnessed themselves and no one else.

o	none of the beneficiaries of the deceased received the sum of K90,000.00 from the first defendant and her husband.  Moreover, the second contract of sale did not have any consideration of K90,000.00.

o	a lawyer from Warner Shand Lawyers did not witness the execution of the Transfer as lawyers for the first defendant and her husband.

o	the first defendant paid K48,000.00 as Land Lease Rentals on 11th September 2012 when she was not the registered proprietor.

o	there were two replacement titles, one issued to ICPNG on 24th July 2002 at the request of Posman Kua Aisi Lawyers and the other on 18th January 2013. 

o	the Deputy Registrar of Titles Mr A Lake did not sign the title entry S62646, S62647 and S62657 on the title instrument “OFFICIAL COPY” and “OWNERS COPY”.

o	three different certificates of titles disclosed discrepancies in the entries between 24th July 2002 and 18th January 2013 by the second defendant’s predecessors.

o	at all material times the ICPNG was the registered proprietor of the property.  The transfer and registration of the title from the deceased to the first defendant on 18th January 2013 was a fraud because the deceased was not the registered proprietor.

o	the above allegations of fraud were not disclosed in defence to the judicial review proceedings OS (JR) No 334 of 2013: Lucy Anjo v Henry Wasa, Romily Kilapat & The State and the National Court ordered the title be restored to the first defendant.

o	similarly, the same allegations of fraud were not disclosed in the proceedings WS No 185 of 2016: BKW Group of Companies Limited v Lucy Anjo and Henry Wasa for the return of K250,000.00 paid as 10% deposit for the sale of the property to BKW Group. 

o	as a result, the parties in that proceedings in a mediation agreed to recognise the first defendant as the registered proprietor of the property by signing a Deed of Settlement and Release dated 24th November 2016. 

o	none of the beneficiaries of the deceased or the Public Curator were parties of the above court proceedings and were not heard on the allegation of fraud by the first defendant and her husband.

o	on 24th November 2016 while living with Unice at her house at Murray Barracks Johnson and three of his tribesmen arrived and forced him to a waiting motor vehicle.  In fear of his life and that of his family, he went with them, and they drove off.  He was taken to Lamana Hotel where a mediation was being held and, on the way, Johnson told him that when they get there, he was to inform the mediation that he had signed a contract of sale with the first defendant.

o	at the mediation he noticed from the title deed that the deceased was the registered proprietor, and it was cancelled by the second defendant.  He confronted Johnson and the first defendant and told them that they had misled him and tarnished his name and reputation, and he will sue them.  He then left for Murray Barracks.

o	those present at the mediation went on to agree and signed a Deed of Settlement and Agreement dated 24th November 2016.  

o	he informed Mr Benny Wapi the current developer residing at the property not to get involved with the first defendant and Johnson because they had procured the title of the property by fraud.

o	Benny Wapi gave him a copy of the NCDC Statement of Land Tax Account dated 19th July 2019.  He noticed that the Statement of Account was directed to the deceased.  When he obtained an updated Statement of Account from NCDC, he noticed it was directed to BKW Group.  

o	BKW Group was the company that paid 10% deposit to the first defendant for the purchase of the property but did not complete the sale and purchase because he contested the first defendant’s title to the property. 
(b)	Unice Taru Kivan (“Unice”)
o	this witness tendered one affidavit, sworn on 14th January 2020 and filed on 11th February 2020 (exhibit “P4”). 

o	Unice states that in 2010 her late uncle the deceased and his family moved out of NCC Valley to live with her at Murray Barracks.  The reasons were that he was repeatedly being harassed by Johnson and was very sick.

o	Johnson was pursuing the deceased for the property and for the deceased to sign some documents concerning the property, but the deceased refused.  

o	the deceased was suffering from a chronic backache and was bed-ridden most of the time until his death on 30th August 2011 at the Port Moresby General Hospital. 
(c)	Trevor Taru (“Trevor”) 
o	this witness tendered one affidavit, sworn on 25th February 2020 and filed on 6th March 2020 (exhibit “P5”).

o	Trevor states that he was attending Coronation Primary School and was in Grade 6 in 2003 when the deceased relocated the family from the property to NCC Valley.  

o	Both parents were unemployed and now deceased.  His late father the deceased was critically ill at that time.  Whatever arrangement the deceased had with Johnson took a different turn and turned sour.  
First Defendant’s Evidence 
4.	The first defendant relies on the evidence of six witnesses as follows: 
(a) 	Ekonia Peni (“Mr Peni”)
o	Mr Ekonia Peni is a lawyer with Posman Kua Aisi Lawyers and tendered an affidavit sworn on 01st September 2021 and filed on 3rd September 2021 (exhibit “D1”).

o	Mr Peni deposes that he is a senior lawyer in the employ of Posman Kua Aisi Lawyers and was the lawyer who acted for the vendors ICPNG in the sale of the said property between ICPNG and the deceased and the deceased and the first defendant and Johnson sometimes back in 2003.  It was a simultaneous transfer.  The first defendant and Johnson were the sole financiers of the purchase of the property from ICPNG to the deceased and from the deceased to them under a separate contract of sale where the deceased transferred the said property to the first defendant after completion of the contract of sale in a simultaneous transfer.

o	Mr Peni also filed an affidavit in the judicial review proceedings OS (JR) No 334 of 2013 between the first defendant and Registrar of Titles and the State.
(b) 	Johnson Anjo Tolabi
o	Johnson is the husband of the first defendant and swore an affidavit on 01st September 2021 and filed on 3rd September 2021 (exhibit “D2”).

o	Johnson states that he and the first defendant are close friends of the deceased since 1993 when the deceased was the Deputy Managing Director of ICPNG.  He was running a security firm called Tolabi Security Services.  Their friendship started when Tolabi Security Services provided security services to some of the properties of ICPNG.

o	ICPNG offered the property to the deceased under the Home Ownership Scheme, but the deceased did not have funds to pay for it and asked him to purchase it.

o	he discussed the proposal with the first defendant who was running a second-hand clothing business and she agreed.  Her agreement led to the execution of the second contract of sale and transfer instrument between the deceased and him and the first defendant on 14th October 2003 prepared by Warner Shand Lawyers.

o	settlement was delayed for various reasons but finally took place on 14th October 2003.  At settlement he produced all settlement bank cheques.  It was at that time the deceased and the first defendant and him executed the second contract of sale prepared by Warner Shand Lawyers.

o	on 13th November 2003 the deceased happily and willingly gave possession of the property to him and the first defendant.  The deceased also wrote a letter to them dated 14th November 2003 thanking them for being their close friends and assisting him over the years.  

o	neither the first defendant, him nor their relatives or friends threatened or forcefully evicted the deceased and his family from the property.

o	on 30th August 2011 the deceased died.  This was eight years after the deceased sold the property to them and gave vacant possession.  

o	prior to the death of the deceased, on 14th May 2011 Junior signed a Statutory Declaration affirming the sale and transfer of the property from the deceased to the first defendant. 

o	on 28th April 2013 Junior being an officer of the Public Curator wrote a letter under the letter head of the Public Curator to the Registrar of Titles affirming the position that the deceased had sold the property to the first defendant pursuant to a contract of sale in 2003 and he will not contest the decision of the deceased to sell the property to the first defendant.
(c) 	Lucy Anjo (“First Defendant”)
o	the first defendant tendered one affidavit sworn on 29th March 2019 and filed on 1st April 2019 (exhibit “D3”).  The Public Curator objected to the use of this affidavit because it is written in English, but the first defendant gave evidence in tok pidgin and it did not have a certificate of translation to verify that its content was explained to the first defendant in tok pidgin and she understood it before signing it as required by Order 11, rule 22(4) of the National Court Rules (“NCR”) and reinforced by the National Court in Maso v Ume (2021) N9122.  

o	the Public Curator’s objection is overruled because while the affidavit does not have a certificate of translation and is irregular, it is the first defendant’s recollection of the account provided in the affidavit that is relevant to determine the question of its use at the trial.  Here, the Court is satisfied that the first defendant was able to reinforce the content of the affidavit in her response to questions by the Public Curator’s counsel during cross-examination.  This demonstrates that she understood what she stated in the affidavit and the Court will use it: Order 11, rule 22(4) of the NCR and Maso v Ume (supra).  

o	the first defendant says that she is the registered proprietor of the property.  

o	in 2013 the predecessor of the second defendant cancelled her title to the property and dealt with Melanesian Trustees Services Limited who had no interests whatsoever and fraudulently transferred the title of the property to BKW Group.

o	on 21st June 2013 she commenced judicial review proceedings OS (JR) No 334 of 2013 challenging the decision of the predecessor of the second defendant to cancel her title to the property.

o	amongst other witnesses, Junior filed an affidavit in support of the judicial review proceedings.  

o	after a trial, on 24th October 2014 the National Court upheld the judicial review proceedings, declared the title of BKW Group as null and void, cancelled it, declared her as the sole registered proprietor of the property and ordered that the title be restored to her.

o	on 27th July 2015 the second defendant complied with the National Court order and amongst others, cancelled the title of BKW Group and restored her as the registered proprietor.

o	on 11th March 2016 BKW Group commenced court proceedings WS No 185 of 2016 alleging fraud against the dealings and transactions between ICPNG, the deceased and her.  It sought amongst others, orders to restore the title to it on the ground that it had purchased the property from the Melanesian Trustees Services Limited who claimed to be the Trustees of ICPNG.

o	pursuant to an order of 21st November 2016 for mediation, on 24th November 2016 the parties to the proceedings WS No 185 of 2016 reached an agreement in a mediation meeting at Lamana Hotel and signed a Deed of Settlement and Release.  Junior was one of the persons present at the mediation meeting.

o	the property is not a deceased estate property for the Public Curator to take charge of because the title had passed from the deceased to her, and this is further reinforced by the National Court decision in OS (JR) No 334 of 2013 and the Deed of Settlement and Release in proceedings WS No 185 of 2016.  

o	Junior has a conflict of interest in the property because he filed an affidavit supporting her judicial review proceedings OS (JR) No 334 of 2013 and was well aware of the sale and purchase of the property between the deceased and her.  Not only that, but he is also a senior estate officer in the office of the Public Curator and did not lodge any complaint against the sale of the property and this is because the property was not a deceased estate property.

o	the deceased died on 30th August 2011 and letters of administration were issued on 31st March 2017 which was almost seven years later.  The Public Curator was not aware of the property being an estate property until the parties in the proceedings WS No 185 of 2016 signed the Deed of Settlement and Release.  Junior alerted the Public Curator to it because he was present at the mediation meeting at Lamana Hotel on the said date when the parties signed the agreement.

o	Junior is using his position to manipulate the Public Curator to challenge her title to the property when there is no fraud.  Moreover, as an example of the manipulation of the Public Curator, the lawyers for the Public Curator on behalf of the beneficiaries of the deceased wrote to her lawyers proposing to settle the dispute out of court.  Her lawyers responded proposing that the Public Curator withdraw the within proceedings.  

o	in any case, Junior is late and should be barred from contesting her title to the property because there are two National Court decisions which are against him or otherwise strongly support her claim as the sole registered proprietor of the property.
(d) 	Greg Puli Manda (“Mr Manda”)
o	Greg Puli Manda is a lawyer and tendered an affidavit sworn on 01st September 2021 and filed on 3rd September 2021 (exhibit “D4”).

o	Mr Manda deposes that at all material times, he was a senior associate lawyer with Warner Shand Lawyers but currently runs his own law practice.  He acted for the vendor (the deceased) and purchasers (first defendant and Johnson) in the sale of the said property between ICPNG and the deceased and the deceased and the first defendant and Johnson sometimes back in 2003.  It was a simultaneous transfer.  The first defendant and Johnson were the sole financiers of the purchase of the property from ICPNG to the deceased and from the deceased to them under a separate contract of sale where the deceased transferred the said property to the first defendant after completion of the contract of sale in a simultaneous transfer.

o	Mr Manda also filed an affidavit in support of the judicial review proceedings OS (JR) No 334 of 2013 between the first defendant and Registrar of Titles and the State.
(e) 	Eddie Waifaf (“Mr Waifaf”)
o	Eddie Waifaf is a lawyer and tendered an affidavit sworn on 01st September 2021 and filed on 3rd September 2021 (exhibit “D5”).

o	Mr Waifaf deposes that at all material times, he was an associate lawyer with Warner Shand Lawyers but currently runs his own law practice.  He assisted senior lawyer Mr Manda who acted for the vendor (the deceased) and purchasers (first defendant and Johnson) in the sale of the said property between ICPNG and the deceased and the deceased and the first defendant and Johnson sometimes back in 2003.  It was a simultaneous transfer.  The first defendant and Johnson were the sole financiers of the purchase of the property from ICPNG to the deceased and from the deceased to them under a separate contract of sale where the deceased transferred the said property to the first defendant after completion of the contract of sale in a simultaneous transfer.

o	Mr Waifaf also filed an affidavit in support of the judicial review proceedings OS (JR) No 334 of 2013 between the first defendant and Registrar of Titles and the State.
(f) 	Frank Yapao (“Mr Yapao”)
o	Frank Yapao is also a lawyer and tendered an affidavit sworn on 01st September 2021 and filed on 3rd September 2021 (exhibit “D6”).

o	Mr Yapao deposes that at all material times, he was an associate lawyer with Kolo & Associates Lawyers but currently runs his own law practice.  He acted for the first defendant who was the plaintiff in the judicial review proceedings OS (JR) No 334 of 2013 against the Registrar of Titles and the State in relation to the cancellation of the first defendant’s title by the Registrar of Titles.  

o	other than this, the assertions he makes at paragraphs 3 to 9 of his affidavit are not within his personal knowledge but have been addressed by the National Court in the judicial review proceedings OS (JR) No 334 of 2013 and need no further determination by this Court.
5.	All the witnesses for the Public Curator were cross-examined while the first defendant, Johnson and Mr Peni were cross-examined.

Findings of Fact

6.	Based on the affidavits and cross-examination of witnesses the Court finds these to be the common facts:
•	the deceased was employed by ICPNG as its Deputy Managing Director.

•	ICPNG was originally the registered proprietor of the said property. 

•	the deceased and his family were residing on the property.

•	the first defendant and her husband Johnson have been close friends of the deceased since 1993.

•	Johnson ran Tolabi Security Services and provided security services to some of ICPNG properties. 

•	on 28th August 2001 the deceased entered into a contract of sale with ICPNG to purchase the said property.  

•	the purchase price was K80,000.00.

•	the deposit was K9,000.00.

•	the deceased did not have funds to pay for the purchase price.

•	the first defendant and her husband came to the aid of the deceased and paid the deposit of K9,000.00.

•	expenses for unpaid land lease, water and sewerage, land and garbage and balance of the purchase price to ICPNG were included and the final purchase price was K102,150.00. 

•	on 14th October 2003 the deceased and the first defendant and her husband entered into a second contract of sale to purchase the said property from the deceased.  The authenticity of the contract of sale is disputed by the Public Curator and is a fact in dispute between the parties which will be determine in due course.

•	on behalf of the deceased, the first defendant paid the balance of K24,499.03 to complete the purchase price.  

•	on 30th August 2011 the deceased died.   

•	subsequently, the first defendant entered into a third contract of sale by oral agreement to sell the said property to BKW Group in the sum of K2.5 million and received a sum of K250,000.00 as 10% deposit.   At that time, the first defendant was not the registered proprietor of the property.  

•	it was only after a replacement title was issued by the second defendant because the original was destroyed by fire on 14th July 2011 that the transfer of title from the deceased to the first defendant was registered on 18th January 2013.  

•	on 13th March 2013 the predecessor of the second defendant served a letter which, amongst others, purportedly cancelled the first defendant’s title to the property.  

•	on 21st June 2013 the first defendant commenced the judicial review proceedings OS (JR) No 334 of 2013: Lucy Anjo v Henry Wasa, Romily Kilapat & The State to challenge the decision of the predecessor of the second defendant to purportedly cancel her title to the property and on 18th December 2014 the National Court ordered, amongst others, the title be restored to her.

•	subsequently, on 11th March 2016 BKW Group commenced proceedings WS No 185 of 2016: BKW Group of Companies Limited v Lucy Anjo and Henry Wasa for the return of K250,000.00 paid as 10% deposit for the sale of the property to BKW Group. 

•	as a result, the parties in that proceedings in a mediation agreed to recognise the first defendant as the registered proprietor of the property by signing a Deed of Settlement and Agreement dated 24th November 2016. 

Grounds in support of Fraud
7.	The Public Curator relies on the following grounds set out at [2] supra to have the first defendant’s title set aside and have the property transferred to the estate of the deceased.

Proof of Fraud 
8.	Relying on Mudge v Secretary for Lands [1985] PNGLR 387 the Public Curator submits that the fraud on the first defendant’s title is actual.  This is because the first defendant’s husband forged the deceased’s signature when signing the second contract of sale.  Junior gives this evidence where he states that he saw the Johnson forged the deceased’s signature on the second contract of sale.  Secondly, Junior’s assertion is corroborated by a police forensic analysis report of the specimen signature of the deceased provided to the Public Curator dated 20th February 2017.

9.	Secondly, relying on Emas Estate Development Pty Limited v John Mea & Ors [1993] PNGLR 215, the Public Curator submits that fraud can be inferred from the conduct of the defendants outlined above and further reinforced by the forgery of the deceased’s signature on the second contract of sale. 

10.	The first defendant submits that:
•	there is no merit in the allegation that she forged the deceased’s signature on the second contract of sale because the deceased signed it eight years prior to his death.  The delay for the transfer and registration of title was because of the title being destroyed in a fire in July 2011.

•	Junior’s revelation during cross-examination that the Johnson forced him to sign the second contract of sale inside a motor vehicle and he refused.  After that, Johnson forged the deceased’s signature on the second contract of sale should not be accepted because it is unreliable.

•	cross-examination of Trevor reveals that “his late father had told him and the family repeatedly that he had sold the subject property and that they would vacate the property soon.”  

•	the forensic analysis report by the Forensic Division dated 20th February 2017 of the specimen signature of the deceased provided to the Public Curator concluding that there “are strong indications that the disputed signature ……..is a Simulated Forgery” is inconclusive and unreliable.

•	the explanation for crossing out of the year 2001 and replacing it with year 2003 in the second contract of sale is that the contract was drafted in 2001 but was not signed by the parties until 2003 when the first contract of sale between ICPNG and the deceased was signed. This ground does not constitute actual dishonesty and tantamount to fraud as was held in Koitachi Limited v Walter Schnaubelt (2007) SC870.

•	the explanation for the first defendant being the sole registered proprietor as opposed to being one of the joint purchasers in the second contract of sale with the deceased is that she was the primary source of funding for the purchase price of the property, and it was only appropriate to have the title of the property transferred and registered to her.

•	the rest of the allegations pleaded in the statement of claim are vague and unsubstantiated by evidence. 
11.	It will be observed that fraud has an element of dishonesty.  Dishonesty is established in two parts; first the element of “mens rea” where there is presence of an intention to defraud another of a property and secondly, the “actus reus” being the act or conduct constituting the dishonesty. In Koitachi Limited v Schnaubelt (supra) the Supreme Court after referring to overseas cases to define fraud under Section 33(1)(a) of the Land Registration Act, expressed the “mens rea” and “actus reus” in this way:
“……..fraud meant actual fraud importing (sic) personal dishonesty or moral turpitude.”
12.	The Public Curator relies on forgery of the deceased’s signature on the second contract of sale to prove actual fraud.  It relies on the Police Forensic Report dated 20th February 2017 and evidence of Junior.  The major question is, did the first defendant or Johnson forge the deceased’s signature on the second contract of sale?

13.	Where a plaintiff relies on an expert report as the sole proof of forgery, the Court will rely on it if it is conclusive.  The stakes are high to prove forgery where the person whose signature is alleged to have been forged is dead and unable to response to the alleged forgery.  In this case, while the Court accepts the first defendant’s submission that the Police Forensic Report dated 20th February 2017 is inconclusive, it accepts Junior’s account as opposed to the first defendant and her husband Johnson for the following reasons: 
•	Junior observed Johnson forged the deceased’s signature on the second contract of sale in the motor vehicle in January 2013.

•	this finding is plausible because when challenged in cross-examination by counsel for the first defendant that Johnson did not forge the deceased’s signature, he maintained that Johnson forged the deceased’s signature.

•	this happened when Johnson picked up Junior at the Public Curator’s Office in a motor vehicle and asked him to sign the second contract of sale on behalf of the deceased, but he refused.  When Junior refused, Johnson signed the second contract of sale by forging the deceased’s signature.

•	Junior’s account is reinforced by Unice’s account that her uncle the deceased and his family moved out of NCC Valley to live with her at Murray Barracks.  The reasons were that the deceased was repeatedly being harassed by Johnson and was very sick.  Johnson was pursuing the deceased for the property and for the deceased to sign some documents concerning the property, but the deceased refused.

•	if Johnson was pursuing the deceased for some documents concerning the property, it is open to find that the reference to some documents is the signing of the second contract of sale and that it is doubtful if the deceased signed the second contract of sale way back in 2001 as claimed by the first defendant. 

•	on the other hand, there is doubt in the first defendant’s assertion that the deceased signed the second contract of sale in 2003 because it is riddled with inconsistencies and discrepancies.  First, she and Johnson repeatedly pursued the deceased and Junior because they had spent a significant and substantial sum of money to purchase the property for the deceased.  Secondly, the Public Curator does not contest the first defendant and Johnson’s claim of financial assistance to the deceased.  Thirdly, none of the Public Curator’s witnesses stated that the deceased purchased the property from ICPNG with his own money and produced receipt of payment to verify it.

•	in the absence of this evidence, it is open to find that the first defendant and Johnson had spent a significant and substantial sum of money to purchase the property for the deceased.  Secondly, as the persons who assisted the deceased pay the purchase price, they were desperate to have the title transferred to them.  It was for this reason that Johnson went to get Junior to sign the second contract of sale on behalf of the deceased and when the latter refused, he signed it by forging the deceased’s signature.

•	the other reason is that the deceased’s signature was crucial to the application for transfer and registration of title from the deceased to the first defendant.  Without it, no transfer and registration of title will occur.  This added to the desperation of the first defendant and Johnson in pursuing the deceased and in his absence, Junior. 

•	moreover, anyone familiar with the law of conveyancing will agree that the parties to the contract of sale may sign it before or on the date of settlement.  In this case, neither the first defendant nor Johnson, the three lawyers Mr Peni, Mr Manda and Mr Waifaf have unequivocally stated in their respective affidavits that they witnessed the deceased signed the second contract of sale before or on the date of settlement.   

•	the absence of this direct evidence reinforces the two grounds in support of fraud that first, no lawyers from Warner Shand Lawyers witnessed the execution of the second contract of sale as lawyers for the first defendant and her husband and as lawyers who drafted it and secondly, no lawyer from Warner Shand Lawyers witnessed the execution of the transfer as lawyers for the first defendant and her husband.

•	on the other hand, it reinforces the Public Curator’s case that Johnson forged the signature of the deceased on the second contract of sale in January 2013.  

•	furthermore, the absence of this direct evidence casts doubts as to the delay in the transfer and registration of the title from ICPNG to the deceased and from the deceased to the first defendant.  If it was a simultaneous transaction on 14th October 2003 as alleged by the first defendant, there was a replacement title issued to ICPNG by the predecessor of the second defendant on the application by Posman Kua Aisi Lawyers on 24th July 2002 and the transfer and registration of the title from ICPNG to the deceased and from the deceased to the first defendant could have been completed soon after that or soon after the date of signing of the second contract of sale on 14th October 2003.  None of this happened.

•	there is a strong inference which reinforces the Public Curator’s case that the deceased did not sign the second contract of sale until Johnson forged the deceased’s signature on the second contract of sale in January 2013 after Junior refused to sign  it and when the replacement title was replaced with a new one after it was destroyed in a fire at the first defendant’s house on 14th July 2011.

•	also, it may well be that the deceased had given possession of the property to the first defendant and her husband on 13th November 2003 and had reaffirmed his promise to sell the property to them in his letter dated 14th November 2003, but they fall short of constituting his signature on the second contract of sale nor a satisfactory explanation for the long delay of more than eight years between them taking possession of the property and the date of transfer and registration of title of 18th January 2013. 

•	next, it will be observed that we have adopted a Torrens Title system of land registration and land transfer where registration of title on the Register of Titles is conclusive evidence of title.  It was, therefore, necessary for the first defendant to have the title of the deceased transferred and registered to her in the Register of Titles by the second defendant before she becomes a registered proprietor, but this could not happen until a second replacement title was issued by the second defendant as the first replacement title was destroyed by fire on 14th July 2011.  

•	once a replacement title was issued, she was able to complete the transfer and registration of title from ICPNG to the deceased and from the deceased to her on 18th January 2013 in a simultaneous transaction.

•	finally, simultaneous transactions or transfers of titles of State Leases between a vendor and purchaser is permitted or not unconventional or uncommon in conveyancing such that it should raise suspicion in this case, but what is disturbing is that the forgery of the deceased’s signature on the second contract of sale was by Johnson and not the first defendant.  The inference open to be drawn is that it was done on purpose to not compromise the interest of the first defendant because as the registered proprietor she holds an indefeasible title unless fraud is proved under Section 33(1)(a) of the Land Registration Act.  

•	it was a clever and smart move by the first defendant and Johnson, but the first defendant is caught by the second contract of sale.  Picking up on one of the grounds of the Public Curator, the second contract of sale refers to the first defendant and Johnson as joint purchasers, but when the transfer and registration were completed, the first defendant was registered as the sole registered proprietor.   Why is that?  So that no fraud can be proved against her.
14.	For the foregoing reasons, it is the finding of the Court that Johnson forged the deceased’s signature on the second contract of sale and the “actus reus” has been established.  The next major question is, is the finding of Johnson’s forgery of the deceased’s signature on the second contract of sale proof of fraud such that the first defendant’s title be set aside under Section 33(1)(a) of the Land Registration Act?
15.	The onus of proof is on the Public Curator to prove fraud on the civil standard of proof on the balance of probabilities.  In a case where the first defendant and Johnson were the financiers of the purchase price for the property on the condition that the title of the property would be transferred to them, it is fair to say that they had an equitable interest in the property.  Their legal interest will materialise once the title is transferred from the deceased to them.  However, the deceased did not.  When they realised that they had spent good money on an investment that was doomed to fail, they had to rescue it.  
16.	They had two options.  First, they could sue the deceased for the return of the money, but that would be a long and costly exercise with no guarantee of 100% recovery especially where the deceased was sick and penniless.  The second option was to secure the property.  They chose the latter.  Objectively, the reasons for Johnson to forge the deceased’s signature on the second contract of sale cannot be viewed as an attempt to move the property beyond the reach of the deceased, but to reinforce the deceased’s agreement to sell the property to them.  
17.	The Public Curator sought to impute personal dishonesty on the first defendant or prove the element of “mens rea” by making a strong submission that the above allegations of fraud were not disclosed in defence to the judicial review proceedings OS (JR) No 334 of 2013: Lucy Anjo v Henry Wasa, Romily Kilapat & The State. Because of this, the National Court ordered the title be restored to the first defendant.  
18.	However, having read the judgment of the National Court, this Court finds that that case is distinguishable on its facts and does not advance the Public Curator’s case on fraud. That was a case decided on a narrow point of law in relation to procedural fairness where it was held that Sections 160 and 161 of the Land Registration Act imposed a duty on the Registrar of Titles to afford a registered proprietor a right to be heard before cancelling its title.  
19.	It was on this basis that the National Court held that the decision of the predecessor of the second defendant to purportedly cancel the first defendant’s title to the property without hearing the first defendant was in breach of Sections 160 and 161 of the Land Registration Act and the reason to quash the decision to cancel the first defendant’s title and restore the title to her.  No allegations of fraud as alleged by the Public Curator was raised and decided by the National Court.
20.	Further, the Public Curator sought to impute personal dishonesty on the first defendant or prove the element of “mens rea” by making another strong submission that the first defendant paid a sum of K48,000.00 as Land Lease Rentals on 11th September 2012 when she was not the registered proprietor of the property.  This submission/ground can be easily dismissed because first, as the purchaser, the deceased is obliged to pay any outstanding fees or costs before title can be transferred from ICPNG to him.  Secondly, as it is common ground that the first defendant and her husband were the financiers of the property, it was in their interests that any outstanding fees or costs such as Land Lease Rentals are settled/paid to pave way for the transfer of title from the deceased to the first defendant.  
21.	On the other hand, it was on the deceased’s promise to sell the property to them that the first defendant entered into a third contract of sale by oral agreement to sell the property to BKW Group in the sum of K2.5 million and received a sum of K250,000.00 as 10% deposit.  But for reasons only known to the deceased, he did not sign the second contract of sale and the transfer and registration of title from the deceased to the first defendant did not take place by the time the first defendant received the 10% deposit of K250,000.00 from BKW Group. No moral turpitude can be imputed against the first defendant for the conduct as described above.
Mediation of Dispute
22.	Finally, the Public Curator sought to impute personal dishonesty on the first defendant or prove the element of “mens rea” by making another strong submission that the same allegations of fraud were not disclosed in the proceedings WS No 185 of 2016: BKW Group of Companies Limited v Lucy Anjo and Henry Wasa for the return of K250,000.00 paid as 10% deposit for the sale of the property to BKW Group of Companies Limited (“BKW Group”). As a result, the parties in that proceedings in a mediation agreed to recognise the first defendant as the registered proprietor of the property by signing a Deed of Settlement and Release dated 24th November 2016. 
23.	The mediation was intended to bring an end to the long outstanding dispute in relation to the first defendant’s claim as the registered proprietor of the property.  One would like to think that it was intended for all parties including the Public Curator and potential beneficiaries of the estate of the deceased to participate.  One could successfully argue that in the case of Junior, he was not part of the mediation but was abruptly brought into the mediation by Johnson and his team when the mediation was underway at Lamana Hotel to agree to a settlement proposal based on his late father’s agreement to sell the property to the first defendant and Johnson.
24.	While there is no evidence of what was discussed at the mediation, there is evidence before this Court that Junior had expressed in a Statutory Declaration dated 14th May 2011 just three months before his father’s death, his consent and affirmation of the sale and transfer of the property from his late father to the first defendant.  Moreover, Junior filed an affidavit in support of the judicial review proceedings OS No (JR) No 336 of 2013 filed by the first defendant.   Junior’s conduct contradicts his claim to dispute the title of the first defendant to the property.  In any case, he is bound by the Deed of Settlement and Release and if the Public Curator thinks otherwise, its remedy is elsewhere but not in these proceedings.
25.	In this Court’s view, this is where the Public Curator’s evidence falls short of establishing the requisite element of “mens rea”.  It follows that the Public Curator has failed to establish the element of dishonesty, in that no actual fraud was committed by the first defendant to procure the title to the property. 
Fraud may be inferred from conduct of first defendant
26.	In relation to the Public Curator’s reliance on fraud being inferred from the conduct of the first defendant:
•	the second replacement title was unnecessary because there was a prior replacement title issued to ICPNG on 24th July 2002 on the application of Posman Kua Aisi Lawyers.

•	the Deputy Registrar of Titles Mr A Lake did not sign the title entry S62646, S62647 and S62657 on the title instrument “OFFICIAL COPY” and “OWNERS COPY”.

•	three different certificates of titles disclosed discrepancies in the entries between 24th July 2002 and 18th January 2013 by the second defendant’s predecessors.
27.	This Court finds that the above are minor administrative errors or discrepancies in the registration and transfer of title to the first defendant which may be corrected by the second defendant at his pleasure.
Is action time-barred?
28.	To close, the first defendant advances the defence under Section 16(1) of Frauds and Limitations Act 1988 (“Limitations Act”) and submits that the within proceedings is time-barred because it was commenced on 20th December 2017 when the time limitation of six years ran from 14th October 2003 (when the second contract was signed) and expired on 14th October 2009.  However, given the Court’s finding on the issue of fraud, it is not necessary to consider this defence.
Conclusion
29.	The Public Curator has failed to prove fraud, actual or otherwise, against the first defendant.  The within proceedings is dismissed and the Public Curator shall pay the first defendant’s costs of the proceedings, to be taxed, if not agreed.

Order
30.	The orders are:
1.	The within proceedings is dismissed.
2.	The plaintiff shall pay the first defendant’s costs of the proceedings, to be taxed, if not agreed.	
________________________________________________________________
Lawyers for plaintiffs: Kipes Law	
Lawyers for first defendant: Fydan Lawyers	
Lawyer for second, third & fourth defendants: Acting Solicitor-General