SC1874

PAPUA NEW GUINEA
[IN THE SUPREMECOURT OF JUSTICE]

SCA No. 177 of 2016

BETWEEN
MOKONDA REINA REMA
Appellant

AND
ROY YAKI, MP
First Respondent

AND
ISAAC LUPARI
Second Respondent

AND
NATIONAL HOUSING CORPORATION
Third Respondent

AND
RAGA KAVANA, THE REGISTRAR OF TITLES
Fourth Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

Waigani: Kirriwom, Anis and Berrigan JJ
2019: 28th August and 30th October

SUPREME COURT – Appeal –S. 5 of the Claims Against the State Act –Proceedings time-barred against the State – S. 33 of the Land Registration Act - Indefeasibility of title - Failure to plead fraud – Failure to establish binding agreement for sale of real property –Requirements of the National Housing Corporation Act considered –Failure to plead or establish conspiracy to effect a breach of contract –Appeal dismissed. 

Cases Cited:
Papua New Guinea Cases

Paul Tohian v Tau Liu (1998) SC566
Mineral Resources Development Company v Matthew Sisimolu (2010) SC 1090 
Rosemary John v James Nomenda (2010) N3851
PNG Power Ltd v Augeria (2013) SC1245 
Brian Joshia v Stephen Raphael (2017) SC1665 
Keka v Yafaet (2018) SC1673

Overseas Cases

Lumley v Gye (1853) 2 E & B 216
OBG Ltd v Allan [2008] 1 AC 1
Palmer Birch (a partnership) v Lloyd [2018] EWHC 2316 (TCC)

References Cited

Section 33 of the Land Registration Act Chapter,1981
Section 4 of the Frauds and Limitations Act, 1988 
Sections 2, 3, 37 and 38 of the National Housing Corporation Act, 1990
Section 5 of the Claims By and Against the State Act, 1996 

Counsel

Mr N. Kubak with Miss G. Kubak, for the Appellant
Mr P. Othas, for the Second, Third, Fourth and Fifth Respondents

DECISION 

30 October, 2019

1.	KIRRIWOM J: I have read the opinions of Berrigan J and Anis J and for the reasons each has respectively reached a decision, I concur. I agree that the appeal be dismissed for the same reasons and the orders proposed. I have nothing to add.

2.	ANIS J: I have had the opportunity to read the judgment of Justice Berrigan.  I concur with her Honour’s reasoning and outcome and I would adopt them, that is, in regard to the dismissal of the appeal.  However, part of my reasoning is structured differently as I will explain. 

3.	The land, which is the subject of dispute in this appeal, consists of a residential property.  It is situated at Paga Hill in Port Moresby in the Nation’s Capital.  It is described as section 27 allotment 23 (the Property).  The appellant’s main claim at the National Court (the trial Court) was for breach of contract, or more specifically and as I would call it, breach of promise to sell land, in this case, the Property.  The appellant had alleged before the trial Court that betweeen1993 and 1995, the third respondent had agreed with him that it would sell the Property which it (i.e., the third respondent) had owned, to him (i.e., the appellant).  The appellant claimed that the said agreement was partly written and partly oral.  On 25 October 2016, the National Court dismissed the proceeding.  

4.	The appellant then filed this appeal.  His notice of appeal was filed on 5 December 2016.  His grounds of appeal read, and I quote in part:

3.1	The learned primary judge erred in fact and in law in not finding that there was a legally binding contract between the Plaintiff and National Housing Corporation to purchase the Paga Hill Property.
3.2	The learned primary judge erred in fact and in law in holding that the Plaintiff had not given a section 5 Notice pursuant to the Claims By and Against the State Act, when the evidence before the Court substantially showed otherwise.
3.3	The learned primary judge erred in fact and in law in relying on a precedence from another jurisdiction to construct the legal meaning and implications of a Home Ownership Scheme that was uniquely Papua New Guinean and created by and governed and regulated entirely by the national policy and law, and therefore clearly distinguishable.
3.4	The learned primary judge erred in fact and in law in holding that negotiations and discussions that underpinned the entire prevailing scheme of arrangement for the acquisition of residential properties pursuant to the Government Home Ownership Scheme, did not amount to a contractual arrangement of a contract.
3.5	The learned primary judge erred in fact and in law in not dealing with the entire 16 issues that were properly before the Court and as restated by the primary court in its judgment, as being paragraphs 1 to 16 as “Issues.”
3.6	The learned trial judge erred in fact and in law in failing to consider and give due weight to the whole of the evidence adduced by the Appellant at the trial in support of his claim, in particular –
(a)	evidence showing the continuing instalment payment of monies by the Appellant to the National Housing Corporation pursuant to duly executed official documents; and
(b)	evidence showing the acceptance by the National Housing Corporation of the relevant periodic payments of monies by the Appellant; and
(c)	evidence as to the State’s conduct through its various appropriate law officers, in accepting correspondences substantially meeting the requirements of section 5 of the Claims By and Against the State Act.
3.7	The learned trial judge erred in fact and in law in refusing to give weight or consider at all the evidence that was properly before the court which showed that the Appellant was paying for and thus was the owner of the Paga Hill Property.
3.8	The learned trial judge erred in law and in fact in not finding that under the prevailing scheme of arrangement for Government Housing Scheme, a Contract for Sale is only executed after full and final payment by the purchaser, in this case the appellant.

5.	The appellant originally commenced proceedings by way of an originating summons.  It was later converted into pleadings and he was required to file a statement of claim.  The statement of claim itself had been amended on many occasions since 1998.  The appellant’s final amended statement of claim was filed on 30 July 2010 (Amended Statement of Claim).  The following events I must say were significant as at 30 July 2010.  Firstly, the third respondent by then had sold the Property to the second respondent, and the second respondent by then had owned the Property for 11 years.  The second respondent purchased the Property from the third respondent on 20 April 1999.  He presently has the title to the Property.  The second significant factor is this.  I note that fraud had not been alleged by the appellant in the Amended Statement of Claim.  A perusal of the history of the proceeding that had transpired before the trial Court, which was also summarised in the submissions, shows that attempt had been made by the appellant to plead fraud in his Amended Statement of Claim on 25 July 2013.  This was however rejected by the National Court.  Since then, fraud had been abandoned as an issue for trial.  And I note that this was evident in the parties’ filed Statement of Agreed and Disputed Facts and Legal Issues.  The document is contained at page 523, Volume 2 of the Appeal Book.  

6.	So the trial Court did not have before it, as a material issue, allegation that was based on fraud.  So let me say this.  Had fraud been pleaded and proven before the trial Court, it could have amounted to or constituted a valid reason where the title to the Property may have been, for example, cancelled or be transferred back to the third defendant or the appellant as its registered proprietor, that is, upon proper proof of fraud being established to the satisfaction of the trial Court.  I say this in view of section 33(1) of the Land Registration Act Chapter No. 191 (Land Registration Act).  Section 33(1) provides various circumstances where a title or an interest in a property or a state lease may be cancelled.  Fraud is one of them.

7.	Section 33(1) states, and I quote in part: 

(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)	the encumbrances notified by entry or memorial on the relevant folio of the Register; and
(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.

(Underlining is mine)

8.	The legal implication under section 33(1) is this.  A registered proprietor of a property or of a state lease which is registered under the Land Registration Act, shall hold an indefeasible title over it.  The interest may only be overturned if one (or more) of the conditions specified under section 33(1), including fraud, is established.  See case:  Mudge v. Secretary for Lands [1985] PNGLR 385. 

9.	Let me consider the merit of the appellant’s claim before the trial Court.  The appellant claims that its agreement with the third respondent was made between 1993 and 1995.  And he pleads particulars of the agreement in his Amended Statement of Claim.  I will say this.  Even if that were to be the case, the second respondent, I note, had by then or since 1999, purchased and held a valid and indefeasible title over the Property.  That being the case, and pursuant to section 33(1)(a) and (2) of the Land Registration Act, the appellant’s interest, assuming that he had signed a valid agreement (which the trial Court found otherwise), would still not have superseded the registered interest of the second respondent over the Property.  The appellant had asked the trial Court to make orders that would have essentially seen the Property being transferred to or been acquired by him, something which, in my view, was unattainable both by himself as well as by the trial Court.  I reach this conclusion given the fact that appellant had not pleaded fraud in his Amended Statement of Claim.  Without pleading fraud, the appellant had not invoked section 33(1)(a) of the Land Registration Act, and therefore the trial Court would not have had jurisdiction to consider and make any orders in regard to the legality or otherwise of the title to the Property, that is, based solely on the allegation of breach of contract. 

10.	Therefore, and based on these reasoning, I would dismiss all the grounds of appeal namely, grounds 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7 and 3.8.  I find them all baseless as well as misconceived.  

11.	The appeal therefore must be dismissed.  I also concur with Justice Berrigan’s ruling on cost.

12.	BERRIGAN, J: This is an appeal against the decision of the National Court made on 25 October 2016 dismissing a claim for breach of contract of sale by the Third Respondent, the National Housing Commission (NHC) to the Appellant of real property described as Section 27, Allotment 23 (formerly Allotment 20B), Granville, National Capital District (NCD), (the Paga Hill Property), which was at the material time owned by the NHC.

13.	The Appellant claimed that he was entitled to the Paga Hill Property under the Government’s Home Give Away Scheme, which was governed by the National Housing Corporation Act 1990, and that he entered into a binding contract with the NHC, evidenced partly in writing and partly by conduct to purchase the said property.

14.	The Appellant also claimed that the First, Second, Third, Fourth and Fifth Respondents conspired to “defeat and cheat” him “of his contractual rights to the Paga Hill Property”.

15.	He initially claimed specific performance of the contract but that was abandoned. He maintained his claim for an amount equal to the value of the property, together with claims for damages for breach of contract, general damages, and damages for conspiracy.

Factual and Procedural Background 

16.	At the material time the Appellant was a public servant based in Mendi, Southern Highlands Province.  The Appellant claimed that in 1982 he became a qualified beneficiary of a property in Boroko under the home ownership scheme for public servants which was in place at the time, known as the Morgan Scheme (the Boroko Property).  He was advised by the Department of Physical Planning & Environment in 1983 that he was not an eligible tenant for the purposes of the scheme pursuant to NEC decision NG151/81.  He refused to accept the decision. Of his own volition he identified the Paga Hill Property as a potential replacement.  At the time the property was occupied by the First Respondent and his family, albeit that the First Respondent was at that time serving a term of imprisonment. The First Respondent was the Appellant’s cousin brother.  The Appellant subsequently applied to the NHC for a house in Mendi for the same purpose.  When that ultimately proved unsuccessful, he claimed he was entitled to the Paga Hill Property as a replacement for the Boroko Property.  

17.	The proceedings commenced by way of originating summons in 1998 seeking declaratory orders for specific performance.  The National Court subsequently ordered that the matter proceed by way of writ of summons.  A statement of claim was filed. Amendments to the writ of summons and subsequent statement of claim were made on three occasions.  

18.	The Appellant’s claim that he was entitled to a “replacement property” was denied by the NHC in the lower court proceedings and was struck out in April 1999 for being time barred.    

19.	A notice of motion tofurther amend the statement of claim to include pleadings and particulars of conspiracy and fraud was refused on 25 July 2013.

20.	It was agreed in the court below that the Paga Hill Property was owned by the NHC at the relevant time, and that the First Defendant lived in the Paga Hill Property pursuant to a Tenancy Agreement with the NHC prior to vacating the property of his own accord sometime in 1997.  

21.	It was further agreed that the Second Respondent moved into the Paga Hill Property in July 1997 pursuant to a Tenancy Agreement with the NHC, and conducted extensive renovations.

22.	In December 1998 the Appellant obtained orders restraining the Respondents from dealing with the Paga Hill Property until the completion of proceedings.

23.	In April 1999 theSecond Respondent paid K86,000 to the NHC.

24.	It was not in dispute that the Appellant was not a “sit-in tenant” of the Paga Hill Property at any time.  Nor that he never held a tenancy agreement with the NHC in respect of the said property. 

25.	Matters in dispute are considered in more detail below as they become relevant.

Grounds of Appeal

26.	The Appellant’s notice of appeal contains 8 grounds of appeal.  The Appellant has since withdrawn Ground 3.3.  The remaining grounds of appeal have been considered in rendering this decision.  They may be summarised as follows:

(a)	Grounds 3.1, 3.4 and 3.8: - the learned trial judge erred in fact and law in not finding that there was a legally binding contract between the Appellant and the NHC to purchase the Paga Hill Property;
(b)	Ground 3.2 and 3.6(c): - the learned trial judge erred in fact and law in holding that the Appellant had failed to give notice pursuant to s. 5 of the Claims By and Against the State Act, 1996 (the Claims Act);
(c)	Ground 3.5: - the learned trial judge erred in fact and in law in not dealing with all 16 issues before the Court; and
(d)	Grounds 3.6(a)(b) and 3.7: - the learned trial judge erred in fact and in law in failing to consider the whole of the evidence adduced by the Appellant in support of his claim.

Ground 3.2 and 3.6(c): Notice pursuant to s. 5 of the Claims By and Against the State Act, 1996

27.	It is useful to consider these grounds first as they concern the competency of the proceedings againsttheThird, Fourth and Fifth Respondents.  The First and Second Respondents are joined as private individuals to which the Claims By and Against the State Act, 1996 (the Claims Act) does not apply.  

28.	The Appellant claims that the learned trial judge erred in fact and in law in holding that the Appellant did not give notice pursuant to s. 5 of the Claims Act, which provides as follows (emphasis added):

5.	NOTICE OF CLAIMS AGAINST THE STATE.

(1) No action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given in accordance with this section by the claimant to–
(a) the Departmental Head of the Department responsible for justice matters; or
(b) the Solicitor-General.

(2) A notice under this section shall be given–
(a) within a period of six months after the occurrence out of which the claim arose; or
(b) where the claim is for breach of a contract, within a period of six months after the claimant became aware of the alleged breach; or
(c) within such further period as–
(i) the Principal Legal Adviser; or
(ii) the court before which the action is instituted,
on sufficient cause being shown, allows.

(3) A notice under Subsection (1) shall be given by–
(a) personal service on an officer referred to in Subsection (1); or
(b) leaving the document at the office of the officer with the person apparently occupying the position of personal secretary to that officer between the hours of 7.45 a.m. and 12 noon, or 1.00 p.m. and 4.06 p.m., or such other hours as may from time to time be declared by or under the Public Services (Management) Act 1995 to be the normal public service hours of duty, on any day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act 1953.

29.	Section 5 of the Claims Acthas been considered and applied numerous times by the National and Supreme Courts. It is well established that the giving of notice pursuant to s. 5 of the Claims Act is mandatory, and a condition precedent to the commencement of proceedings against the State. Failure to comply is fatal.Where the State disputes that s. 5 has been complied with, and there is some evidence of this, it is encumbent on the plaintiff to satisfy the court on the balance of probabilities that notice has been given:  Brian Joshia v Stephen Raphael (2017) SC1665 applying Paul Tohian v Tau Liu (1998) SC566.

30.	As observed by the learned trial judge the Claims Act was passed in 1996.  The learned trial judge found that the title deed was transferred to the Second Respondent in 1998.  Thus the primary judge found that the cause of action arose within 6 months of that registration. It appears from the record below that title was in fact transferred in April 1999, not 1998, but that is beside the point.

31.	The evidence before the primary judge was that notice pursuant to s. 5 of the Claims Act was purportedly given to the Office of the Solicitor General on 19 October 2009.  This was some ten or eleven years after the institution of the proceedings in the National Court and well outside the 6 months within which notice was required. 

32.	There was no evidence that the Appellant had sought an extension of time within which to give notice of his claim to the State, and the evidence from the State was that no such extension had been given.

33.	The primary judge considered but dismissed the Appellant’s submission that a letter dated 7 September 1990 to the State Solicitor constituted sufficient notice for the purposes of s. 5 of the Claims Act.  The learned trial judge found that the document related to the Appellant’s claim with respect to the Boroko Property, which had already been struck out as statute barred.  On the face of the document there was no error on the part of the judge in this regard.

34.	Moreover, the letter predates by almost three years the date when the Appellant himself claims that any binding agreement with respect to the Paga Hill Property came into effect,during which time the Appellant also claims he lodged an application with the NHC for a property in Mendi.

35.	The Appellantargued on submission before this Court thats. 5 of the Claims Act does not apply to the NHC.

36.	There is currently no definitive Supreme Court authority on whether the NHC is an instrumentality of the State for the purposes of s. 5 of the Claims Act.  

37.	The issue was specifically raised by the Appellantin Keka v Yafaet (2018) SC1673.  In dismissing the appeal, the Supreme Court noted that there were two divergent lines of National Court authority on the matter, and had regard to the five criteria set out inPNG Power Ltd v Augeria (2013) SC1245for the purpose of determining whether or not a body is a governmental body, together with the observations of the Supreme Court in Development Authority v Matthew Sisimolu (2010) SC 1090 regarding whether an entity is a statutory organisation or a State entity.  

38.	Whilst noting the obiter dicta in PNG Power (supra)to the effect that the NHC was an arm of the State, and stating that it is likely that the NHC is a State authority according to the first four criteria set out in PNG Power, the Supreme Court declined to make a definitive finding on criterion 5, i.e. whether “it is not established to make profits for the government but for the benefit to the people” due to a lack of evidence.  At [50] the Court went on to state that: 

“… the question whether the NHC is the State, such that a s.5 Notice is required in respect of claims against it, remains an issue open to be litigated in a properly argued case where issues regarding the corporate and commercial nature of its activities can be examined by reference to evidence.”.

39.	This Courtfinds itself in no better position to make such a determination.  The issue has been raised belatedly during submissions on appeal and no evidence is before the Court. 

40.	In any event, the Appellant has failed to establish any error on the part of the primary judge. There was no dispute at the lower court as to whether notice was required to be given to the NHC pursuant to s. 5 of the Claims Act.  The only issue was whether or not the Appellanthad done so within time, which for the reasons stated above, it is clear that he had not. 

41.	Grounds 3.3 and 3.6(c) have not been substantiated.On this basis alone I would dismiss the appeal against the Third, Fourth and Fifth Respondents.

42.	Whilst not raised by the Appellant, it is the case that the primary judge also dismissed the claim against the Second Respondent on the basis of s. 5.  As a private individual he was not automatically covered by the protections of the Claims Act. That is of no consequence, however, for the reasons discussed below.

Grounds 3.1, 3.4 and 3.8: Contract between the Appellant and the NHC 
43.	The Appellantsubmits that the learned trial judge erred in fact and in law in finding thatthere was no binding contract of sale between himself and the NHC for the Paga Hill Property, and “that the negotiations and discussions that underpinned the Government Home Ownership Scheme did not amount to a contractual arrangement”. Furthermore, that the learned trial judge erred in not finding that under the scheme a contract for sale is only executed after full and final payment by the purchaser.

44.	The learned trial judge found that whilst there were negotiations and/or discussions between the Appellant, the NHC and the Fifth Respondent, having regard to all of the evidence, there was no binding and enforceable contract to buy and sell a property.  In doing so he had regard to the nature of the purported sale, in particular that it concerned State owned property under a home ownership scheme, together with the evidence of the Second Respondent and the NHC, both of which he accepted.

45.	The finding was open to the learned trial judge on the evidence before him.

46.	Any sale of the Paga Hill Property was governed by the National Housing Corporation Act, 1990(the NHC Act) and could only take place in accordance with the legislation, and toa person who fell within one of the three categories set out in s. 37 of the Act, namely: a) an eligible person; b) an approved applicant; or c) a person who exercises the option offered to him under s. 38(1). See Rosemary John v James Nomenda (2010) N3851.

47.	The relevant provisions of the NHC Act provide as follows (emphasis added):

“37. SALE OF DWELLINGS. 

Subject to this Division, the Corporation may sell a dwelling vested in it to– 
(a) an eligible person; or 
(b) an approved applicant; or 
(c) a person who exercises the option offered to him under Section 38(1).

3. DECLARATION OF ELIGIBLE PERSONS. 

The Corporation may declare a person to be a person eligible for assistance under Part IV. by reason of– 
(a) his limited means; or 
(b) his present unsuitable housing; or 
(c) any other circumstances considered relevant by the Corporation.

2. DECLARATION OF APPROVED APPLICANTS. 

The Minister may declare an organization or person to be an approved applicantfor the purposes of this Act. 

38. OPTIONS TO PURCHASE. 

(1) After a tenancy agreement has been in force for two years between the Corporation and a tenant, the Corporation may, in its discretion, offer to– 
(a) the tenant; or 
(b) the spouse, widow or widower of the tenant; or 
(c) the tenant and his spouse as joint tenants; or 
(d) the tenant and his next of kin, 
an option to purchase the dwelling the subject of the agreement at a purchase price specified in the option, subject to the conditions imposed by this Division. 

(2) Where a tenant, under Division 1, of a dwelling becomes a purchaser under this section, either along or jointly with his spouse, he is entitled– 
(a) as from the date on which his tenancy of the dwelling commenced; or 
(b) if he has been a tenant of the Corporation in more than one dwelling without interruption and the Corporation so approves–from the date of first occupation of an earlier dwelling, 
and subject to any terms specified in the option, to be credited in reduction of the sale price of the dwelling with an amount equal to that part of the economic rent that represents the repayment of the amount of the capital cost included in the amortization allowance in accordance with Section Sch.2.4. 

(3) Where a tenant has not been credited with an amount in accordance with Subsection (2) and his spouse, widow or widower becomes a purchaser under this section, the spouse, widow or widower is entitled to be credited with the same allowance under Subsection (2) as the tenant would have been entitled to if he had purchased the dwelling. 

(4) A contract of sale under this section may provide– 
(a) for the outright purchase; or 
(b) for the payment of the purchase price by instalments; or 
(c) for the payment of the purchase price to be secured– 
(i) by mortgage, in the prescribed form, over the property in respect of which the advance is made; or 
(ii) by any other security approved by the Corporation.”
	
48.	Whatever negotiations or discussions may have been ongoing between the NHC and the Appellant, there was no evidence that the NHC had declared the Appellant to be an “eligible person” pursuant to s. 3 of the Act, for the purposes of s. 37(a).  Nor was there evidence that the Minister had declared the Appellant an “approved applicant” pursuant to s. 2, for the purposes of s. 37(b) of the Act.  As above, it was not in dispute that the Appellant was never a tenant of the Paga Hill Property for the purposes of s. 37(c) of the Act.

49.	In summary, the Appellant was not an eligible person nor an approved applicant for the purposes of the scheme. Nor had he been offered an option to purchase by the NHC in accordance with the legislative procedure, or otherwise for that matter.Whilst there were ongoing discussionsthere was no binding agreement.

50.	Furthermore, s. 4 of the Frauds and Limitations Act, 1988 provides that no action shall be brought upon a contract for the sale or other disposition of land or an interest in land unless the contract, or some note or memorandum of the contract, upon which the action is brought is in writing signed a) by the person against whom the action is brought; or (b) by an agent of that person lawfully authorized in writing for the purpose.  There was no such contract, note or memorandum of sale, in writing and signed by the NHC, whether as an option to purchase, or a final contract of sale. 

51.	Grounds 3.1, 3.4 and 3.8 are dismissed.

Ground 3.5: Failure to deal with all 16 issues before the Court 

52.	The Appellant submits that the learned trial judge erred in fact and in law in not dealing with all 16 agreed issues in dispute before the primary Court, in particular the issues of conspiracy, estoppeland fraud,and further that he failed to take into consideration that the Paga Hill Property was a “replacement property”.

53.	The learned trial judge dismissed the proceedings against the Third, Fourth and Fifth Respondents pursuant to s. 5 of the Claims Act.  It was not necessary for him to consider any of the claims against those Respondents in the circumstances. 

54.	The First and Second Respondents as private individuals were not automatically covered by the protections of the Claims Act.  Whether or not they remained liable in this case depended upon the nature of the claim and the damages sought against them.

55.	There is some authority at common law that a third party may be made liablefor conspiracy by unlawful means to effect a breach of contract: Lumley v Gye (1853) 2 E & B 216.The complexity of this area of the law and its development in the United Kingdom is reflected in a recent authority from that jurisdiction:Palmer Birch (a partnership) v Lloyd [2018] EWHC 2316 (TCC) applying OBG Ltd v Allan [2008] 1 AC 1 (House of Lords).

56.	It would have been futile in the present case, however,for the trial judgeto consider whether the First and Second Respondents conspired to effect a breach of the contract or deprive the Appellant of the “performance” of his “contractual rights”having found there were no such contractual rights.Moreover, the Appellant’s claim for conspiracy was never properly pleaded, and as noted above at [7], his attempt to rectify this was refused earlier in the proceedings.

57.	There was no pleading of estoppel in the Appellant’s “Further Amended Amended Statement of Claim”, and for the reasons stated above, any such claim would have fallen away upon a finding that there was no contract.

58.	As to fraud, there was no such claim before the lower court.  The Appellant’s application to amend his Further Amended Amended Statement of Claim to plead fraudwas refused in 2013,and “any suggestion” that the claim was based on fraud wasexpressly disavowed by the Appellant’s counsel in closing oral submissions.

59.	For the reasons provided by Anis J, any challenge to the Second Respondent’s title, which was indefeasible by 1999, would have been futile.

60.	Nor does the Appellant’s assertion that the Paga Hill Property was a “replacement property” take this ground any further. As above, the Appellant’s claim to a “replacement property” was dismissed for being time barred.  Even putting that to one side, the issue before the lower court was whether there was a binding agreement for the sale of the Paga Hill Property. The learned trial judge considered that there were discussions and negotiations but found that they amounted to nothing more.  As above, there was no error of fact or law in this regard.

61.	Ground 3.5 must also be dismissed.

Grounds 3.6(a) and (b) and 3.7: Failure to Consider the Whole of the Evidence 

62.	The Appellant submits that the learned trial judge erred in fact and law in failing to consider and give weight to  the whole of the evidence, in particular evidenceshowing that the Appellant continued to make regular payments by instalments to the NHC, pursuant to duly executed official documents, which were accepted, and which showed that he was “thus the owner of the Paga Hill Property”.

63.	These groundshave been dealt with above.  There was no error of fact or law in the primary judge’s finding that there was no contract for sale. 

64.	The Appellant may have executed an authority for salary deductions of K23 per fortnight.  He purportedly did so, however, as the “tenant” of the Paga Hill Property, which he was not.  At most the documentary evidence shows a total of four such deductions, but these deductions were disputed by the NHC, which evidence was preferred by the learned trial judge. Whatever payments were made by the Appellant, they were not made pursuant to any binding agreement with the NHC.

65.	Grounds 3.6(a)(b) and 3.7 must be dismissed as well.

Conclusion 
66.	For the above reasons and in all the circumstances of the case,in my respectful view, the Appellant has failed to show that the learned trial judge erred in law or in fact.

67.	The entire appeal must therefore be dismissed.  

68.	The First Respondent did not appear on the proceedings. Therefore, as to costs, the Appellant shall pay the Second, Third, Fourth and Fifth Respondents’ costs of and incidental to the appeal.
_______________________________________________________________
Kubak & Kubak: 		Lawyer for the Appellant
Paul Othas Lawyers: 		Lawyer for the Second, Third, Fourth and Fifth Respondents