SC2291

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV NO. 25 OF 2020

Review pursuant to Constitution 
section 155(2)(b) Application by Robert Kopaol

BETWEEN
ROBERT KOPAOL
Applicant

V

STEAMSHIPS LIMITED
First Respondent

AND:
BENJAMIN SAMSON 
The Registrar of Titles
Second Respondent

AND:
NATIONAL HOUSING CORPORATION
Third Respondent

Waigani: Salika CJ, Mogish J, Anis J
2022: 28th June, 31st August

SUBSTANTIVE REVIEW – Application for review after grant of leave – s 155(2)(b) – Constitution – Order 5 Division 1 – Supreme Court Rules 2012 as amended – Leave for review granted separately - Primary action based on declarations to validate a title – dispute concerns purported 2 titles issued over the same land – land described as Section 33, Allotment 07, Granville, NCD – review of decision of trial judge that regarded the first respondent’s title as valid over the title of the applicant– whether only 1 title exists over the property – what was the status of the original title? – whether appellant had been dealing with a worthless or void title – whether the applicant had standing to question the title of the current registered proprietor – whether question of bringing fraud home to the registered proprietor applied in the case of the applicant - application of the principle of indefeasibility of title – Torrens System of land registration – whether the trial judge committed error(s) that should require a referral and rehearing – whether there are cogent and convincing reasons or exceptional circumstances that show some substantial injustice is manifest, whether the case is of special gravity, or whether it is in the interest of justice 

Cases Cited:

Keimbun Keindiip v. The Independent State of Papua New Guinea [1993] PNGLR 28
Ramu Nickel Ltd v Dr Puka Temu [2007] N3252
Henry Fragili v. Gabriel Karup and Ors [2011] N4200
Steamships Trading Company Ltd v. Hon Benny Allen and Ors [2021] N9334
Mudge v Secretary for Lands [1985] PNGLR 387
Kitogara Holdings v NCDIC [1988-89] PNGLR 346
Emas Estate Dev. Pty Ltd v John Mea, Kala Swokin, & The State [1993] PNGLR 215
The Administration of the Territory of Papua New Guinea -v- Balius Tirupia and Others In Re. Vunapaladig and Japalik Land [1971-72] PNGLR 229
Avia Aihi v. The State [1981] PNGLR 81
State v. Toka Enterprises Ltd [2018] SC1746

Counsel:

S.Wanis, for the Applicant
J Nigs, for the First Respondent
J Bakaman, for the Second Respondent
L Tangua, for the Third Respondent

31st August, 2022

1.	BY THE COURT:  This was a substantive judicial review hearing.  The review was filed by the applicant under s 155(2)(b) of the Constitution.  Leave for review was required and was granted earlier on 12 August 2021.

BACKGROUND

2.	The review challenges a decision of the National Court which was made on 4 September 2020 in proceeding OS No. 60 of 2014 (the National Court proceeding/Court below).  The first respondent herein was the plaintiff in the National Court proceeding.  The proceeding was later converted to pleadings whereby parties filed pleadings including a crossclaim which was filed by the applicant against the third respondent.  The first respondent sought damages and declaratory orders based on negligence, fraud, and illegality, against the applicant and the second and third respondents.  The applicant made similar claims against the first respondent as well it claimed dishonesty and breach of statute, namely, of various provisions under the Land Registration Act (LRA) against the third respondent.

3.	The dispute concerned a residential property.  It is described as Section 33, Allotment 07, Granville, NCD (the Property).  The main parties to the dispute in the National Court were the first respondent and the applicant.  Both parties presented ‘2 titles’ which they each held or possessed over the Property.  The first respondent claimed that its Owner’s Copy of the Title to the Property was the legitimate one.  The applicant, on the other hand, made the same claim in regard to his Owner’s Copy of the Title that he held.  Both parties, amongst others, accused each other of fraud or fraudulent dealings, that is, of how they each had acquired their titles to the Property, and the matter went to trial.

4.	On 4 September 2020, the National Court handed down its decision as follows:

1.	The registered proprietor of Section 33, Lot 7, Granville was Sir Tore Lokoloko.
2.	The transfer of the property on Section 33, Lot 7, Granville by National Housing Corporation to the First Defendant (Robert Kopaol) on 16 July 2013 is quashed as null and void ab initio.

3.	The sale and transfer of the property on Section 33, Lot 7, Granville by Sir Tore Lokoloko to the Plaintiff (Steamships Ltd) is lawful and valid.

4.	The replacement title registered by the Registrar of Titles on 21 March 2013 is valid.

5.	The Plaintiff is the registered owner of the property.

6.	Default judgment is entered against the NHC as Cross Defendant in favour of the Plaintiff and the First Defendant to be assessed.

7.	The Fourth Defendant (National Housing Corporation) in the cross-claim shall pay the costs of the Plaintiff and the First Defendant (Robert Kopaol) in this proceeding and the cross-claim on a solicitor client basis to be taxed if not agreed.

ISSUES

5.	To judicially review the trial Judge’s decision to determine whether His Honour erred in his decision, we have a number of preliminary queries or questions which we believe we should answer first, namely, (i) what is the legal effect after the Registrar of Titles (RoT) cancels and issues a replica or replacement title to a property?, (ii), subject to the first issue, how many titles were issued to the Property that currently exist?, (iii), how will the principle - indefeasibility of title apply to this case and in whose favour?, and (iv), subject to all of the above, does the applicant have standing in the substantive matter against the first respondent?

MATERIAL CONTENTIONS/FUNDAMENTAL MISCONCEPTIONS

6.	The Owner’s Copy of the Title to the Property that the first respondent has, which is the Replica or Replacement Title (Replica/Replacement Title), is located at pp 166 of the Review Book (RB).  The back sheet of that Title shows that on 28 April 2009, the RoT issued the Replica or Replacement Title under s 162 of the LRA.  The back sheet record or entry also shows that the Title to the Property was then, and on the same day, transferred to the Late Sir Tore Lokoloko (Sir Tore), a retired Governor General of Papua New Guinea.  The record further shows that on 21 March 2013, the Title to the Property was entered as transferred to the first respondent.

7.	As for the applicant, his Owner’s Copy of the Title to the Property is located at pp 170 of the RB (‘Original Title’).  The back sheet of that Title registers only one transfer.  It shows that on 16 July 2013, the Property was transferred by the third respondent to the applicant.

8.	So, when we consider the underlying arguments, the applicant’s claim in regard to the Property is this.  He contests the validity of the first respondent’s Title which is the Replica/Replacement Title.  He claims that his Title is valid because it is actually the ‘Original Title’ to the Property which had been kept by the third respondent all this time until it was sold and transferred to him on 16 July 2013.  He asserts that the ‘Original Title’ was never lost as alleged by the first respondent.  In so doing, he claims that the Replica/Replacement Title is a nullity and should be discarded; that it was also obtained through fraudulent means.

9.	There is a fundament fact which had been misconceived by the parties which must be clarified at the outset.  There are no 2 titles issued over the Property.  This is not a case where 2 or more titles have been created over the same piece of land and where the Court must decide and declare one to prevail over the other.  In that type of situation (i.e., where 2 or more titles are created over the same land), the title that is issued first in time shall, subject to the exceptions under s 33(1) of the LRA, prevail or be declared as valid ahead of the other(s).  

10.	Section 33(1) states:

33.  PROTECTION OF REGISTERED PROPRIETOR.

(1)  The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except–
(a)	in the case of fraud; and
(b)	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.

[Underlining and bold lettering ours]

11.	Case law over the years that supports this principle of law (i.e., where 2 or more titles are created and issued over a same land, the one that is issued first in time will normally survive or prevail) include, Keimbun Keindiip v. The Independent State of Papua New Guinea [1993] PNGLR 28, Ramu Nickel Ltd v Dr Puka Temu (2007) N3252, Henry Fragili v. Gabriel Karup and Ors (2011) N4200 and Steamships Trading Company Ltd v. Hon Benny Allen and Ors (2021) N9334.

12.	The present case, however, is different.  There is no prior instrument of title that is held by the applicant or the first respondent.  In fact, and as stated above, no 2 titles have existed over the Property before the National Court proceeding was commenced.  The alleged 2 titles held by the first respondent and the applicant, may be described generally as the same but it was a case where a new title had been created to replace the other.  The first respondent’s Title is the Replica/Replacement Title of the ‘Original Title’ to the Property.  And the ‘Original Title’ is the one that the applicant has which he claims as still valid.  The applicant raised challenges in the National Court proceeding where he questioned the process for cancellation of the Title to the Property, and the exercise of power by the RoT in granting the Replica/Replacement Title to the first respondent.  The applicant says he still has the ‘Original Title’; that it was never lost or destroyed; that the ‘Original Title’ had at all times been kept by the third respondent before he purchased the Property.

13.	Both claims could have been true for the reasons as raised in the National Court proceeding.  The Title to the Property could have been lost as alleged by the third defendant thus a replacement was issued by the RoT, or the Title to the Property could have remained with the third respondent at the material time, or further still, the Title to the Property could have been lost but subsequently recovered by the third respondent after the creation of the Replica or Replacement Title.

14.	However, these scenarios are immaterial or inconsequential to the crucial facts which are these.  Application or request for issuance of a replica or replacement title under s 162 of the LRA can only be made to the RoT by a registered proprietor or his or her personal representative if the registered proprietor is deceased [s. 162(1)].  The third respondent was the registered proprietor of the Property at the material time or in 2009, and it was the third respondent who had applied for a replacement title under s 162 in 2009.  It was not the Late Sir Tore.  This was confirmed in evidence and during cross-examination of Mrs Gedare.  It could not have been done by the first respondent who had no interest then nor could it have been done by Sir Tore.  So, on 28 April 2009, the Replica or Replacement Title to the Property was created and issued by the RoT, upon the request of the third respondent, to Sir Tore.  Notice of the RoT’s intention was published in the National Gazette G59 on 2 April 2009.  Evidence of that was adduced before the National Court (at pp 232 of the RB).  The second last paragraph of the Gazettal Notice reads “Other Interest:  Stamped, Approved and Un-Registered Transfer to Sir Tore Lokoloko.”.  That had formed the basis whereby instead of transferring the Property back to the third respondent, it was transferred to the new owner in waiting so to speak.  That is reflected at the back record or register of the Replica/Replacement Title to the Property.

15.	The Late Sir Tore kept the Replica/Replacement Title from 2 April 2009 to 23 December 2010 when he, at settlement, handed the said Replica/Replacement Title to the Property over to the first respondent.  The Property was then registered as sold to the first respondent on 11 February 2013 and later entered in the register on 21 March 2013.  Evidence of the said settlement and production of the Replica/Replacement Title are contained at paras 2 to 6 in Mrs Gedare’s affidavit (pp 57 of the RB).  During examination, Mrs Gedare was cross-examined in regard to a note which apparently was said to have been passed on from the Late Sir Tore at the time of settlement.  The note was said to have been issued by an officer of the third respondent, a Jim Tepi, earlier at the time when the third respondent had requested the RoT to issue a replacement title, that is, back in 2009.  The misconceived perception we see from the submissions of the applicant is that the Late Sir Tore had no issued title with him during the time of settlement, and that he had sought to rely on the said note for the creation of and transfer of the Title to the Property, to the first respondent.  If this was not the case, all we can say is that we were under that impression based on the submissions of the applicant and the third respondent, that is, before coming to realize the true situation which was that the Late Sir Tore already had with him the Replica/Replacement Title to the Property, which had been issued to him and which he had held for over 1 year 8 months, before he sold or handed it over to the first respondent on 23 December 2010.  The note was something that may or may not have been presented to the RoT back in 2009 but which Mrs Gedare would have no knowledge of as she had stated in her answers when she was cross-examined (pp 577 of the RB).

16.	Therefore, the general assertion by the parties that there are 2 issued titles over the same land or Property is, in our view, misconceived and wrong.  Once the Replica/Replacement Title was issued in 2009, it replaced the ‘Original Title’ to the Property.  Therefore, the claim by the applicant and the third respondent, that they had transacted on the sale and purchase of the Property based on the ‘Original Title’, is, in our view, of no consequence, without merit, and baseless.  This is because of the fact that the Replica/Replacement Title to the Property had by that time existed and had replaced the ‘Original Title’, that is, as of 28 April 2009.  The Late Sir Tore, as of 28 April 2009, was the registered proprietor of the Property.  He was issued with the Replica/Replacement Title to the Property which he later sold to the first respondent.

17.	Another significant misconception of the material facts which must be corrected or also brought to light, is this.  The third respondent, as of 28 April 2009, no longer had any legal or propriety interest over the Property.  This position remains to this day.  Arguments concerning the ‘Original Title’ to the Property are inconsequential after 28 April 2009.  The status quo then was that the Late Sir Tore had acquired an indefeasible title to the Property after he was issued with the Replica/Replacement Title.  Thus, any transactions and dealings between the applicant and the third respondent that were based on the ‘Original Title’ after 28 April 2009, were or would have been invalid and baseless.  The third respondent by then had no propriety interest in the Property which it could have passed on to the applicant.  The so called ‘Original Title’, which the applicant claims to possess, has been cancelled or replaced thus is a worthless document.  And the principle of indefeasibility of title shall apply in this regard.  The Replica/Replacement Title to the Property is the one valid Title that vests propriety interest in the Property with the first respondent thus causing it to hold an indefeasible title.  See cases: Mudge v Secretary for Lands [1985] PNGLR 387, Kitogara Holdings v NCDIC [1988-89] PNGLR 346 and Emas Estate Development Pty Ltd v John Mea, Kala Swokin, and The State [1993] PNGLR 215.

18.	The only party who had any real interest back then who could have challenged the decision of the RoT was the third respondent.  But then, how could it since it was the third respondent that had applied for the Replica or Replacement Title in the first place back in 2009?  Nevertheless, it did not challenge the decision of the RoT in issuing the Replica/Replacement Title to the Property.  Thus, the applicant, if he was to have any real interest at all concerning the Property, would have been entirely dependent upon the third respondent asserting its right as a former owner of the Property against the decision of the RoT.  As we know, the third respondent never challenged RoT’s decision.  And to make it more difficult for the applicant, the Title to the Property had since exchanged hands twice.  So, if that is the case, which in fact is, then where does that leave the right or standing of the applicant in regard to the Replica or Replacement Title of the first respondent? Or what right at all does the applicant therefore have to question or challenge the validity of the Title to the Property of the first respondent including raising claims such as fraud?

19.	Further, given that the third respondent had disposed of its interest in the Property on 28 April 2009, it could not have passed any propriety interest in the Property over to the applicant. 

20.	Therefore, the applicant, in our view, also has no standing to question the Replica or Replacement Title to the Property of the first respondent and or its dealings with the Property.  The applicant’s right in the matter was limited to its claim against the third respondent which he had or has exercised in the Court below.  However, he does not have any right to challenge the first respondent’s propriety interest in the Property in question.  For whatever reason the third respondent had seen fit to continue to deal with the cancelled ‘Original Title’, would only be known to it.

21.	In summary. the applicant’s crossclaim against the first respondent in the Court below is misconceived.  The applicant has no legal or propriety interest whatsoever over the Property.  Rather, the registered proprietor is the first respondent, and the principle of indefeasibility of title applies in its favour.  Firstly, the propriety interest in the Property was bestowed to the Late Sir Tore before it passed on to the first respondent.  Dealings in regard to the Property by the applicant and the third respondent relying on the ‘Original title’ as they have admittedly stated, were null and void.  The said ‘Original Title’ ceased to exist on 28 April 2009.  Despite these, by or as of 2008, through to July of 2013, based on the evidence, the applicant was still undergoing his registration process to acquire the Property.  Eventually, he purportedly registered his interest in the ‘Original Title’ to the Property, on 16 July 2013, that is, 4 years after the ‘Original Title’ had been cancelled.  What this means in short is that the ‘Original Title’ is a worthless piece of paper or document.

22.	Having made this clarity or having come to the conclusion that the applicant has no legal interest in the Title of the Property, he therefore has no standing or interest to challenge or question the interest of the first respondent over the Property.  The applicant must have standing to question the title of the first respondent which he has not.  But even if he may have standing and claims fraud, fraud has to be established against the current registered proprietor of the Property.  This requirement has been stated by this Court in its earlier decisions in cases such as The Administration of the Territory of Papua New Guinea -v- Balius Tirupia and Others In Re. Vunapaladig and Japalik Land [1971-72] PNGLR 229.  The Supreme Court also held that in the absence of fraud, the registered proprietor’s title cannot be affected by actual or constructive notice of any claim, right, title or interest in the land acquired prior to its registration.  

23.	The only other legitimate persons who had interest and who could have questioned the legal interest of the first respondent over the Property may be the estate of the Late Sir Tore.  There is nothing before us to say that such action or challenge has been lodged.  As for the third respondent, its interest to challenge the Replica/Replacement Title over the Property ended when the Property exchanged hands from the Late Sir Tore to the first respondent.  As for the applicant, he has no legal interest whatsoever as against the Replica/Replacement Title of the Property of the first respondent.  His interest would have been created, (i), had a challenge been lodged by the third respondent against the decision of the RoT of 28 April 2009 and, (ii), had the Property not exchanged hands from the Late Sir Tore to the first respondent.  None of these have occurred in the present case. 

COURT’S POWER & GROUNDS OF REVIEW

24.	Let us consider this Court’s power under s 155(2)(b).  This Court in Avia Aihi v. The State [1981] PNGLR 81 stated:

Section 155 (2) (b) of the Constitution, which gives the Supreme Court an "inherent power to review all judicial acts of the National Court", however, invests the Supreme Court with an unfettered discretionary jurisdiction to hear an appeal and an application for leave to appeal from the National Court, although the applicant has lost his right to appeal or to apply for leave to appeal. The discretion should be exercised only in exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity, the onus being upon the applicant.

25.	And 27 years later, this Court restated in State v. Toka Enterprises Ltd (2018) SC1746, amongst many other case, the position under s 155(2)(b) as follows:

17. The test applicable to a grant of review under s 155(2) (b) of the Constitution is settled.  An application for review may be allowed if it is in the interest of justice to do so, that there are cogent and convincing reasons and exceptional circumstances that show some substantial injustice is manifest or the case is of special gravity; and that there are clear grounds meriting a review of the decision. I am satisfied that the test has been met in this case.

26.	We refer to the 5 grounds of review in the Application for Review.  The first and the main ground of review refers to the trial Judge’s findings that the Property was given as a gift to the Late Sir Tore.  

27.	There were unrefuted evidence which were tendered without objection by the first respondent before the National Court that supported the findings of the trial Judge.  The applicant claims, amongst others, that the issue had not been raised and was not fully argued before the trial Court.  However, we note that this was not a contested matter when we consider the signed Statement of Agreed and Disputed Facts and Legal Issues the parties had filed (SADFLI).  A copy is located at pp 375 of the RB.  The historical background shows that the Property was given to Sir Tore as a gift, that is, reading from paragraphs 1 to 14 of the SADFLI.  Again, these facts were not disputed.  Sir Tore’s interest over the Property goes back in time to 24 June 1987 when he signed an application to purchase the Property pursuant to a scheme called Government Sale Off Scheme.  Undisputed fact shows that on 5 October 1989, in Gazettal Notice No G65, the Property was listed and declared under the category Special Categories of houses.  This process is permitted under s 42 of the National Housing Corporation Act (NHC Act).  If the provision is invoked then the National Executive Council (NEC), and not the third respondent, will have the say in the pricings and terms and conditions of houses that are listed and declared as Special Categories of houses.  The price tag set for the Property by the said declaration was K40,375.  Before settlement occurred, the Government of the day, led by Sir Rabbie Namaliu, decided that the Property would be given as a gift to the Late Sir Tore given his former service to the nation, that is, as the Governor General of Papua New Guinea.  So, on 13 February 1992, the Property was published in the National Gazette No. G12 again under Special Categories of houses within the requirements of s 42 of the NHC Act.  Confirmation of the government’s intention, which was not disputed, was sent via letter dated 3 June 1992 by the then Acting State Solicitor to Sir Tore’s lawyer Beresford Love.

28.	The trial Judge’s decision was premised primarily on these undisputed historical facts.  The Court found that as the Property was given as a gift, which is permitted by law under s 42 of the NHC Act and may be carried out by the NEC.  The Court found that the Property was transferred to Sir Tore in 2009, then from Sir Tore to the first respondent in 2010 which was then registered to its name in 2013.  The material consideration by the trial Court was that it was not as if Sir Tore had showed up from nowhere to make a claim over the Property.  In fact, and if we may add, the person that has only recently made claims over the Property is the applicant.  He had no historical connection to the Property, that is, unlike Sir Tore who had lived in the Property for many years after his retirement as the Governor General of Papua New Guinea.  The Court also took into account the fact that Sir Tore had first lodged his application to purchase the Property in 1987 which was decades back.

29.	With that, we summarise the background history of the Property herein.  Sir Tore was given the Property as a gift by the government for his status as a former Governor General of Papua New Guinea.  It was the government of the day that had committed itself to have the Property transferred over to Sir Tore as a gift.  There had been delays over the years by the State to have the Property transferred over to Sir Tore.  But eventually, the Property was transferred to him, that is, on 28 April 2009.  The issue of whether the original title was lost or destroyed was a matter of no concern to Sir Tore.  That was a matter for the third respondent who at all material times held the original title to the Property.  But the third respondent then was also obligated or obliged after or when s 42 of the NHC Act had been invoked by the NEC, to process the transfer of the Property over to Sir Tore.  It was a matter between the third respondent and the State Solicitor at the material time to sort out, to ensure that the Property was transferred to Sir Tore free or as a gift.  That process was set into motion when the third respondent applied to the RoT to create the Replica/Replacement Title where it then had the Property transferred to Sir Tore, that is, on 28 April 2009.  That was the historical aspect of it, which in our view, was correctly concluded by the trial Judge.

30.	Grounds 4.2, 4.3, 4.4 and 4.5 read:

4.2	The trial judge erred in fact when he held that the First Respondent tendered into evidence by consent various affidavits when there was no actual consent given for such by the Applicant or the Second and Third Respondents.
4.3	The trial judge fell into error of fact when he held that the owner’s copy of the title was not with NHC and an MD for NHC applied for a replacement title because there was no evidence before the court of such an application by an MD of NHC at any one time.
4.4	The trial judge fell into error of fact by holding against the applicant when there was sufficient evidence, both in affidavit and oral testimony given by witnesses from the top management of the Third Respondent (NHC) at trial that NHC as the prior landlord did lawfully transfer to the Appellant the title to the property. 
4.5	The trial judge fell into error of law when he failed to address and give reasons in refusing all the points of law raised by the Appellant in his submissions thereby breaching the principles of natural justice and jeopardizing the Appellant’s right to be heard.

31.	We dismiss these 4 grounds of review for the same reasons we used to dismiss the first ground.  We also dismiss these grounds based on our preliminary findings and also based on the misconceptions as highlighted above in our decision.

32.	We therefore see no valid reasons to overturn, vary or replace the decision of the Court below.  We say this given our preliminary assessments and also taking into account the following.  We note that the trial Judge has mainly focused his attention or findings on the question of whether the Property had been given to the Late Sir Tore as a gift given that he was a former Governor General of Papua New Guinea.  Although we find no error in His Honour’s decision in this regard, it would have had little or no bearing to the mandatory requirements that are stipulated under the various legislations and in particular the LRA when it comes to sale and purchase of state leases or properties and their transfers.  

33.	The processes under the LRA are mandatory and have to be complied, even in a case where a state lease is to be transferred as a gift.  The principle of indefeasibility of title is paramount when it comes to property ownerships or dealings thus must be adhered to as well as be protected.  We, however, find no breaches of this principle from the dealings between the first respondent and the Late Sir Tore in regard to acquisition of the Property by the first respondent.  The issued Replica/ Replacement Title to the Property that is kept by the first respondent is the current valid title.

SUMMARY

34.	So, in summary, we are not satisfied that there are cogent and convincing reasons, that there are exceptional circumstances, or that it is the interest of justice, that we should grant the review application.  We also find the primary claim by the applicant misconceived which was premised on the basis that there were no 2 separate valid titles in dispute.  The only valid Title is the Replica/Replacement Title that the first respondent has.  The applicant had been dealing with what he claims is the ‘Original Title’ which in fact was cancelled on 28 April 2009.  Thirdly, we also find as a preliminary matter that the applicant and the third respondent do not have any legal or valid standing to question or challenge the Title to the Property that is currently held by the first respondent.  For clarity, this does not include the applicant’s interest and his claim against the third respondent.  Given these findings, the question that one must bring fraud home to the registered proprietor also does not arise.  For these reasons, this review application shall be dismissed.

COST

35.	We will order cost to follow the event, that is, cost of this review is awarded against the applicant in favour of the first and second respondents.  The third respondent supported the arguments and position taken by the applicant therefore it shall not be awarded cost in its favour.

ORDERS OF THE COURT:

36.	We make the following orders:

(i)	The review is dismissed in its entirety.

(ii)	The National Court decision of 4 September 2020 is affirmed.

(iii)	The matter shall be referred back to the National Court for assessment of damages against the third respondent as per term 6 of the National Court order of 4 September 2020.

(iv)	The applicant shall pay the first and second respondents’ costs of this review on a party/party basis which may be taxed if not agreed.

________________________________________________________________
Solomon Wanis:	Lawyer for the Applicant
Steamships in-house Counsel:	Lawyer for the First Respondents
Solicitor General:	Lawyer for the Second Respondent
Tangua	Lawyers for the Third Respondent