N11211
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO 94 OF 2013

BETWEEN
DAVID NISO
Plaintiff

AND
MATHEW LAU
First Defendant

AND
NATIONAL HOUSING CORPORATION
Second Defendant

AND
MONICA LARA
Third Defendant

WAIGANI: MAKAIL, J
21 APRIL, 8 MAY 2023; 31 MARCH 2025

STATE LEASES – Property dispute – State lease – Two certificates of title – Conflicting titles – Production of one certificate of title – Original owner’s copy of title – Authenticity of certificate of title – Declaration of title – 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

Counsel
Mr N Kiuk for plaintiff
First Defendant in person
No appearance, for second & third defendants

JUDGMENT

1.	MAKAIL J: Pursuant to a writ of summons filed on 18th February 2013 the plaintiff seeks a declaration that he is the registered proprietor of a property described as Allotment 38 Section 321, Gerehu Stage 6, National Capital District and registered as State Lease (Residence Lease) Volume 97, Folio 192.  In turn, he seeks a declaration that the first defendant is not a registered proprietor of the property.  Further, he seeks an order to permanently restrain the first defendant from interfering and/or dealing with the property. 

Definition of Fraud

2.	The law in Section 33(1)(a) of the Land Registration Act, is that “The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except in the case of fraud.” A registered proprietor’s title can be set aside if it is procured by fraud.  The word “fraud” in Section 33(1)(a) of the Land Registration Act has been defined as actual fraud or constructive fraud: Mudge v Secretary for Lands [1985] PNGLR 387, Emas Estate Development Pty Limited v John Mea & Ors [1993] PNGLR 215 and Koitachi Limited v Walter Schnaubelt (2007) SC870.

Conflicting titles - Two certificates of title 

3.	It is not uncommon in this jurisdiction to have legal proceedings commenced to determine conflicting titles because there are more than one certificates of titles issued by the Registrar of Titles.  In the present case, I have read the following: 

(a)	original owners copy of the certificate of title (Exhibit “P1”),  

(b)	affidavit of the plaintiff sworn and filed on 18th February 2013 (Exhibit “P2”),  

(c)	affidavit of the plaintiff sworn on 18th February 2013 and filed on 25th March 2013 (Exhibit “P3”), 

(d)	affidavit in support of the plaintiff sworn on 18th April 2017 and filed on 28th April 2017 (Exhibit “P4”),

(e)	supplementary affidavit of the plaintiff sworn on 4th May 2017 and filed on 5th May 2017 (Exhibit “P5”), 

(f)	affidavit of Tai Yai sworn and on 19th May 2017 (Exhibit “P6”),

(g)	affidavit of Tai Yai sworn and filed on 5th June 2018 (Exhibit P7”),

(h)	supplementary affidavit of the plaintiff sworn on 29th December 2022 and filed on 30th December 2022, and

(i)	affidavit of the first defendant filed on 25th October 2017.

4.	Based on the accounts in these affidavits, I find that there are two conflicting certificates of titles, one by the plaintiff and the other by the first defendant.  The plaintiff’s account is that he purchased the property from a Mr Billy Imar the former Managing Director of Eda Ranu pursuant to a contract of sale signed on 6th December 2012 in the sum of K100,000.00.  A copy of the certificate of title corroborates the plaintiff’s account.  On 22nd January 2013 the title was transferred from Mr Imar and registered to the plaintiff by the Registrar of Titles.  In addition, at trial the plaintiff tendered the original owners copy of the certificate of title which was marked Exhibit “P1”.

5.	Moreover, the plaintiff tendered a copy of the contract of sale between the second defendant and Mr Imar for the sale of the property from the second defendant to Mr Imar dated 14th July 2010 copy of Transfer Instrument from the second defendant to Mr Imar dated 14th July 2010 and copy of computer record of the second defendant showing the release of the title to Mr Imar dated 30th September 2010.  

6.	On the other hand, the first defendant asserts that on 26th June 2007 he purchased the property from the second defendant after a fire gutted the building on the property leaving it vacant.  He produced a copy of a contract of sale signed with the second defendant on 26th June 2007 and copy of a certificate of title dated 28th April 2008 to corroborate his assertion.  

7.	The plaintiff’s counsel made comprehensive and extensive submissions addressing nine issues to resolve the dispute over the two conflicting certificates of titles.  One of them is whether a title issued first in time automatically voids subsequent titles for the same property.  However, the correct question to ask is, which one of the two is the valid one?

8.	The requisite documents to corroborate a valid certificate of title are a contract of sale between a vendor and purchaser including a purchase price and evidence of payment.  In other cases, payment of stamp duty where the purchase price is above a certain threshold under Section 10 of the Stamp Duties Act.  The other important document is a Transfer Instrument between the vendor as transferor and the purchaser as the transferee.

9.	In the present case, it is common ground that:

•	the plaintiff and first defendant each has a contract of sale between the vendor and him.

•	moreover, the plaintiff annexures a contract of sale between the second defendant and Mr Imar dated 14th July 2010.

•	the plaintiff’s purchase price is K100,000.00 which is corroborated by a copy of a cheque of K100,000.00 dated 30th November 2012.  On the other hand, the first defendant did not mention a purchase price sum in his affidavit or contract of sale.

•	the plaintiff has a Transfer Instrument between Mr Imar and him dated 21st January 2012. 

•	moreover, the plaintiff annexures a Transfer Instrument between the second defendant and Mr Imar dated 14th July 2010.

•	on the other hand, the first defendant did not tender a Transfer Instrument between the second defendant and him.

10.	The tender of the requisite documents by the plaintiff corroborates his account that he holds a valid certificate of title while the absence of purchase price, evidence of payment of purchase price and Transfer Instrument by the first defendant further reinforces the plaintiff’s account that he holds a valid certificate of title.

11.	Aside from these requisite documents, there is extrinsic evidence in the form of a letter in response from the second defendant’s Manager NCD/Central to the plaintiff’s lawyers dated 29th March 2018 which may be found at annexure “B” to exhibit “P7” confirming that Mr Imar was the legitimate purchaser of the property from the second defendant and that the second defendant has no record of dealing with any other person or the first defendant in relation to the subject property.  This piece of evidence reinforces the plaintiff’s account that Mr Imar was the then registered proprietor of the property and sold it to him and the certificate of title he currently holds is the authentic one.  

12.	To further reinforce the plaintiff’s account, he tendered the original owners copy of the certificate of title (Exhibit “P1”).  The tender of the plaintiff’s original owners copy of the certificate of title was following the Court order of 16th March 2022 which ordered the plaintiff and first defendant to produce their respective original owners copy of the certificate of title for verification purposes.  The plaintiff has but not the first defendant.

13.	I have had the benefit of perusing it.  Where there are two conflicting certificates of titles and the plaintiff and defendant’s accounts are evenly matched such that, it is difficult to decide which account should be accepted, it will rest on the authenticity of the certificate of title.  Thus, having perused the original owners copy of the certificate of title (Exhibit “P1”), I am satisfied on the balance of probabilities that it is authentic and find that the plaintiff’s owners copy of the certificate of title is the valid copy. Conversely, the defendant’s defence that the plaintiff’s title was procured by fraud must fail. 

Relief 

14.	There is evidence by the plaintiff which the first defendant does not contest that the first defendant, his servant, agents, associates and/or relatives interfered with the plaintiff’s right to deal with the property in the form of physical confrontation, fight, harassment, threats and intimidation when the plaintiff, his servants, agents, associates and/or relatives were putting up a building on the property.  This interference continued for a long time forcing the plaintiff to commence the within proceedings in the hope of bringing the dispute to a close.  Based on this evidence, I am satisfied that the plaintiff has made out a case for the orders sought in the writ of summons.  

Order

15.	The orders are:
	
1.	The within proceedings is upheld.

2.	The plaintiff’s title per the certificate of title dated 22nd January 2013 is upheld.

3.	At all material times, the plaintiff is the registered proprietor of the property described as Allotment 38 Section 321, Gerehu Stage 6, National Capital District and registered as State Lease (Residence Lease) Volume 97, Folio 192.

4.	The first defendant’s title per the certificate of title dated 28th April 2008 is quashed.

5.	The first defendant, his servants, agents, associates and/or relatives whomsoever are permanently restrained from coming within 100 metres of the property forthwith.

6.	The first defendant, his servants, agents, associates and/or relatives whomsoever are permanently restrained from re-entering and erecting structures on and/or occupying the property forthwith.

7.	The first defendant, his servants, agents, associates and/or relatives whomsoever are permanently restrained from interfering with the plaintiff’s right to quiet possession and enjoyment of the property forthwith.

8.	The first defendant, his servants, agents, associates and/or relatives whomsoever are permanently restrained from harassing, intimidating, threatening or harming howsoever the plaintiff and his servants and agents forthwith.

9.	The original owners copy of the certificate of title (Exhibit “P1”) shall be released and returned to the plaintiff forthwith.

10.	The first defendant shall pay the plaintiff’s costs of the proceedings, to be taxed, if not agreed.
 ________________________________________________________________
Lawyers for plaintiff: Kiuk Lawyers		
Lawyers for first defendant: Ben Yagi Lawyers