SC2543
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 133 OF 2017

LILLIAN ANGAI AND ALL THOSE PERSONS RESIDING WITHIN ALLOTMENT 78, SECTION 52, (GORDONS) HOHOLA
Appellants 

AND:
GEMINI HOLDINGS LIMITED
Respondent 

Waigani:  David J, Geita J & Toliken J
2022:  26th October
2024:  23rd February

CIVIL APPEAL – appeal against National Court’s decision to dismiss appeal from District Court’s decision to evict appellants from land in dispute – allegation that error committed by dismissal as District Court had no jurisdiction when title to the land in dispute was bona fide in dispute - both the appellants and respondent had copies of titles to the property – allegation that appellants had owner’s copy of title and not the respondent- Jomoro Swimming Pool Services Pty Limited was initially the registered proprietor of the land in dispute and mortgaged it to a bank who had a registered mortgage  over it – one of the appellants claims to be the widow of the other director who has since died  and is the surviving director of was Jomoro Swimming Pool Services Pty Limited – respondent purchased the land in dispute from the bank under a mortgagee sale – the respondent is registered proprietor of the land in dispute – appeal from District Court shall only be allowed if it appears that there has been a substantial miscarriage of justice – National Court dismissed appeal as no substantial miscarriage of justice was demonstrated - District Courts Act, Chapter No.40, s.21(4)(f) (Civil jurisdiction) and 230 (Power of National Court on appeal) – Stamp Duties Act. S.19(1) – Land Registration Act, ss.32 and 33.

Cases Cited:
Mudge v Secretary for Lands [1985] PNGLR 387
Yandu v Waiyu (2005) N2894
Siwi v Mathew (2006) N3048
Camilus v Mota (2022) SC2210

Counsel:
Gibson Bon, for the Appellants  
Darryl Kamen, for the Respondent	

JUDGMENT
23rd February 2024

1.	BY THE COURT:  INTRODUCTION: This is the decision of the Court on the appeal against the decision of the National Court constituted by the late Justice Nablu delivered on 18 August 2017 (National Court decision) when Her Honour dismissed an appeal against a decision of the Port Moresby District Court (District Court appeal) constituted by Her Worship Daro Kevau of 16 December 2013 (District Court decision) granting orders to evict the Appellants from all that property described as Allotment 78 Section 52 (Gordon’s) Hohola, National Capital District and contained in State Lease Volume 10 Folio 135 (the Land in Dispute).  The National Court found that the District Court did not commit any identifiable error of fact and law as to jurisdiction on the question of whether there was a bona fide dispute as to title to the Land in Dispute and there was no substantial miscarriage of justice and therefore dismissed the appeal and affirmed the District Court decision.

BACKGROUND  

2.	On 17 June 2013, the Respondent commenced proceedings against the Appellants in the Port Moresby District Court by Complaint No.360 of 2013 together with a Statement of Claim seeking an order to evict the Appellants pursuant to s.6(1) of the Summary Ejectment Act on the basis that they were unlawfully in occupation of the Land in Dispute.  A Summons to a Person Upon Complaint was also issued to the Appellants to compel them to appear before the District Court to answer the complaint. 

3.	Jomoro Swimming Pool Services Pty Limited (Jomoro Swimming Pool Services) was initially the registered proprietor of the Land in Dispute. 

4.	The Land in Dispute was mortgaged to Papua New Guinea Banking Corporation (PNGBC), the forerunner of Bank of South Pacific Limited (BSP) by Jomoro Swimming Pool Services as security for the repayment of a loan it obtained from BSP and subsequently registered.  

5.	The Respondent claimed in the District Court that it acquired the title to the Land in Dispute from BSP after Jomoro Swimming Pool Services defaulted in meeting its loan obligations to BSP which resulted in BSP exercising its powers under the mortgage and sold the Land in Dispute to the Respondent. 

6.	After the transfer of the property from BSP to the Respondent on 18 August 2004, the Appellants have refused to vacate the Land in Dispute.

7.	Since the transfer of the Land in Dispute from BSP to the Respondent, the Appellants have unsuccessfully instituted a number of proceedings in both the National Court and Supreme Court challenging the validity of the transfer. The most recent court proceedings challenging the Respondent’s title over the Land in Dispute was commenced in the National Court in WS No.1181 of 2009, John Angai v Gemini Holdings Limited and the Bank of South Pacific Limited (Further National Court Proceedings).  John Angai is the late husband of Lilian Angai, one of the Appellants. 

8.	The Further National Court Proceedings were dismissed by the National Court on the applications of both the Respondent and BSP through notices of motion filed on 23 February 2010 and 26 February 2010 respectively and on 11 May 2010 the relevant orders were taken out by Kuman Lawyers, then lawyers for the Respondent.

9.	On 16 December 2023, the District Court granted orders: for the Appellants to give vacant possession of the Land in Dispute to the Respondent within Forty Four days; and for a warrant of possession to be issued directing the members of the Police Force to enter the Land in Dispute by force and with assistance if necessary and take and give possession of the Land in Dispute to the Respondent.

10.	By a notice of appeal lodged on 13 January 2014, the Appellants appealed the decision of the District Court in the National Court in proceedings registered as CIA No.3 of 2014. 

11.	On 18 August 2017, the National Court dismissed the District Court Appeal.

12.	By notice of appeal lodged on 26 September 2017, the Appellants instituted this appeal.

GROUNDS OF APPEAL

13.	The grounds of appeal relied on by the Appellants in the notice of appeal which we summarise are that the National Court erred in fact and in law when it found that:

1.	The copy of the title presented by the Respondent was conclusive evidence that the Respondent was the registered proprietor of the Land in Dispute when the Appellants also had the Owner’s copy of the title and the purported transfer of the title over the Land in Dispute from BSP purportedly as mortgagee exercising power of sale to the Respondent was questionable and irregular;

2.	A copy of the Contract for Sale of Land between PNGBC and the Respondent annexed to Lilian Angai’s affidavit which was actually provided by the Respondent was inadmissible because; firstly, it was hearsay evidence from her; and secondly, as the contract was not stamped it could not be given in evidence contrary to s.19(1) of the Stamp Duties Act, Chapter 117; and
      
3.	There was no bona fide dispute to the title over the Land in Dispute as the evidence showed that the Respondent had a clear title to the Land in Dispute. 

RELIEF SOUGHT

14.	The main relief sought by the Appellants are; the National Court decision be quashed; and District Court appeal be remitted to the National Court to be heard and determined by another Judge. 

ISSUE

15.	From the three summarised grounds of appeal emerges only one pertinent issue whose determination in our view will ultimately determine the outcome of the appeal and that is whether in dismissing the District Court appeal, the National Court erred when it found that the title to the Land in Dispute was not bona fide in dispute because the Respondent had a clear title over it. 

SUBMISSIONS

16.	The Appellants submitted that the appeal should be upheld and the relief sought be granted as:

1.	There was a bona fide dispute as to the title over the Land in Dispute claimed by the Respondent because the Appellants also had the Owner’s copy of the title showing Jomoro Swimming Pool Services as the registered proprietor of the Land in Dispute ;
2.	The District Court therefore lacked jurisdiction pursuant to s.21(4)(f) of the District Courts Act; 
3.	The Contract for Sale of Land entered between PNGBC as mortgagee and the Respondent through which the Land in Dispute was purportedly sold and transferred to the Respondent and which was erroneously not admitted into evidence for hearsay and not stamped pursuant to s.19(1) of the Stamp Duties Act was questionable and irregular;
4.	The District Court decision demonstrated a substantial miscarriage of justice.   

17.	The Respondent submitted that the appeal lacks merit and should be dismissed in its entirety as:

1.	It purchased the Land in Dispute from PNGBC exercising its power of sale as mortgagee on account of the failure by Jomoro Swimming Pool Services to meet its loan obligations through a valid conveyance involving a valid contract for sale of land;  
2.	It is the registered proprietor of the Land in Dispute protected by the principle of indefeasibility of title propagated by s.33 of the Land Registration Act and the National Court correctly found that its copy of the title was conclusive evidence of it being the registered proprietor of the Land in Dispute;
3.	The records of the Department of Lands and Physical Planning show that it is being charged annual State Lease rentals which it pays;
4.	The Appellants have been unsuccessful in their attempts to disturb the Respondent’s title over the Land in Dispute in court proceedings they have instituted in both the National Court and the Supreme Court; 
5.	Jomoro Swimming Pool Services has not challenged its title over the Land in Dispute;
6.	Jomoro Swimming Pool Services was not a party in the District Court appeal and this appeal and other proceedings instituted in both the National Court and the Supreme Court attempting to disturb the Respondent’s title over the Land in Dispute;
7.	The Appellants are in illegal occupation off the Land in Dispute; 

CONSIDERATION

18.	Did the National Court err in finding that the title to the Land in Dispute was not bona fide in dispute as the Respondent had a clear title to the Land in Dispute? 

19.	The relevant discussion in the National Court decision that led to the National Court’s finding that the Respondent’s copy of the title was conclusive evidence of it being the registered proprietor of the Land in Dispute are found at paragraphs 9 to part of paragraph 13 and these are restated below:

“9.	The Magistrate’s handwritten notes are found at page 69 of the Appeal Book. The Magistrate’s reason for granting the eviction orders appear to be based on the fact that the respondent provided a copy of a title which indicated that the property was transferred from the Bank (PNGBC) to them. Therefore, Her Worship was satisfied that the respondent was the registered proprietor on a balance of probabilities and therefore granted the orders sought.
10.	The copies of the title in the evidence before me are different. In the affidavit of Lillian Angai, she only annexes the first page of the title (see page 13 of the Appeal Book). The quality of the photocopying is not too good, however, it appears to be similar to the first page of the respondent’s copy of the title.

11.	On the other hand, the respondent’s copy of the State Lease has the second page with the entries (see page 119-120 of the Appeal Book). The evidence before me indicates that the State Lease was a replacement title which replaced a lost or destroyed title. The replacement copy was registered on 17th August 2024. The next day an entry was registered to give effect to the transfer of the interest in the land from BSP to the respondent. It can be inferred from the evidence before me that the Bank exercised their mortgagee powers of sale and sold the property to the respondent. This entry was made on 18th August 2004 and registered as No.S.35361.

12.	The title copy is in my view conclusive evidence of the fact that the respondent, Gemini Holdings Ltd is the registered proprietor of the property.

13.	By accepting the evidence of the respondent’s title, the learned Magistrate did not commit an error of law...”

20.	The National Court’s discussion contained in the paragraphs cited above are unambiguous, very clear in detail and need not be repeated here.   The National Court accepted the Respondent’s title as it had the second page with entries demonstrating the transfer of the property by PNGBC exercising its power of sale to the Respondent whereas the Appellants through Lillian Angai only produced the first page which was in congruence with the first page of the title produced by the Respondent.  At the hearing of the appeal, Mr. Bon of counsel for the Appellants conceded that the Land in Dispute was mortgaged to PNGBC as security for a loan obtained by Jomoro Swimming Pool Services and that Jomoro Swimming Pool Services had defaulted and the mortgage was not discharged.  We find no error in the National Court accepting the Respondent’s copy of the title over the Land in Dispute.     

21.	As to the question raised by the Appellant about the refusal by the National Court to admit the Contract for Sale of Land into evidence supporting the Appellants’ case because it was hearsay evidence from Lillian Angai and that it was not stamped pursuant to s.19(1) of the Stamp Duties Act, the relevant discussion by the National Court is found at paragraphs 13 (part only) to paragraph 29 of the National Court decision.  Whilst the discussion is detailed and lengthy, we consider that in order to better appreciate how the question was addressed by the National Court, it is appropriate that we restate them verbatim below:

“13.	… The next question is, was there a bona fide dispute as to title?  In the appellant’s affidavit in the District Court (pages 80-89) of the Appeal Book), Mrs Angai deposed to the following facts in response to the complaint.  She was a director of Jomoro Ltd.  She maintained the position that Jomoro Limited is still the registered proprietor.

14.	In her evidence Mrs Angai claimed that the contract of sale was not executed by the Bank and there is no evidence of an advertisement for the mortgagee sale.  She annexed a copy of the purported contract of sale.  A copy of the contract of sale is also annexed to the affidavit of Maskat Iangalio after the amalgamation of PNGBC and BSP, consequently a clear and good title did not pass to the respondent.  Therefore the title is still vested with Jomoro Ltd.

15.	Mrs Angai stated further that there was a proceeding which was instituted by John Angai but he had passed away and the proceedings were dismissed for want of prosecution.  In that proceeding they challenged the legality of the contract and therefore there was a bona fide dispute as to the title of the property.

16.	Mr Yanision submitted that there was overwhelming evidence that supported the appellant’s claim that there is a bona fide dispute as [to] the validity of the respondent’s title. Therefore the learned Magistrate erred in assuming jurisdiction and making those orders to evict the appellants. Mr Yansion submitted the case of Kapakabang v. Palibutu (2011) N4692. 

17.	After careful consideration of the evidence and the decision of the District Court, I am of the view that the learned Magistrate did not commit an error of law that resulted in the substantial miscarriage of justice.

18.	I am of the view that the appellant’s submissions are misconceived for the following reasons. Firstly, it is trite law that the District Court is a creature of Statute.  Section 21 of the District Courts Act provides for the Court’s civil jurisdiction. The Court cannot deal with cases where there is a bona fide dispute as to title (Section 21(4)(f) of the District Courts Act).

19.	The preponderance of authorities state that the District Court does not have jurisdiction to consider disputes in regard to title. There must be evidence of a bona fide dispute. In my view, there must be evidence of Court proceedings which show that the aggrieved party has made a claim that the title is not good on that they are seeking to set aside the title.

20.	In my view, it is not sufficient to just simply claim that you have a dispute. The aggrieved person must take formal legal steps to set aside the title. Section 32 of the Land Registration Act states that:

Where an instrument of title –
(a)	describes a person as the proprietor of an estate or interest; or
(b)	indicates, by any other form of words, that a named person is seized of, or entitled to, or has taken, an estate or interest,
that person is the registered proprietor of the estate or interest.

21.	It is trite law that, the registered proprietor of an estate or interest holds it absolutely free from all encumbrances except for those instances provided in Section 33(a) to (i) of the Land Registration Act. There must be evidence of actual fraud before a Court will set aside a title (see Koitachi Limited v. Walter Schnaubelt (2007) SC 870).

22.	However, the onus is on the person claiming that the title was obtained by fraud or that they have a prior interest or estate which takes precedence to take formal legal steps to seek redress. On the face of the record, it is clearly stated that the interest in the property was transferred from PNGBC to Gemini Holdings.

23.	In the present case, if the appellant is claiming that there was fraud, the appellant should have filed an application for judicial review to set aside the title or filed an action for the fraudulent transfer of the title to the respondent. There is no evidence before this Court and or the District Court that such a case was on foot. The case of Kapakabang (supra) does not offer any support to the appellant’s case, in that case, the appellant appealed against the decision of the District Court Magistrate who went ahead and disregarded the appellant’s title and determined the case. The Magistrate made findings of fraud which he did not have the power to do.

24.	In the present case the Magistrate ruled in favour of the respondent after been satisfied that they had a clear title. I am not convinced that Her Worship committed an error of law or fact in finding that she did have jurisdiction to hear the case when there was evidence of a clear title and there was no bona fide dispute as to the title.

25.	Furthermore, the correct entity to bring a bona fide dispute is Jomoro Ltd and not the individuals like in this case. Jomoro Ltd was the registered proprietor prior to the transfer to the respondent company. Therefore, the company should have filed a civil action if they were aggrieved.  Nevertheless, the transfer of the title occurred in 2004, over 12 years ago. The delay in making a claim maybe regarded as inordinate now. The length of time since the transfer of the property to the filing of the complaint is also very long.

26.	The company is a separate legal entity from the individuals. Mrs Lillian Angai stated in her affidavit that she is a director but there was no evidence in the District Court of that fact. No evidence was tendered in regard to the status of the company, like an IPA Search etc. was tendered in the District Court. Is the company still a going concern? Is the company still registered? These questions would have been properly settled via evidence by the appellants in the District Court. However, in the evidence before me there was simply no evidence to prove any of these facts relied on by the appellants in the District Court.

27.	I am not persuaded that Her Worship erred when making those findings.

28.	Furthermore, the appellants annexed a copy of the purported contract of sale.  I am not persuaded by that  argument for two reasons, firstly, the contract of sale is inadmissible, it is hearsay evidence from Mrs Angai and it is also inadmissible because on the efface of the contract it is clear that the contract was not stamped as required by Section 19(1) of the Stamp Duties Act.

29.	Therefore Her Worship was correct in not accepting the appellant’s argument that there was a bona fide dispute as to the title of the property.  I am of the view, that the learned Magistrate did not commit any identifiable errors of law and therefore there is no substantial miscarriage of justice.” (sic)  

22.	We find no error in the National Court making the two findings as; firstly, Lillian Angai was not privy to the Contract for Sale of Land so her evidence about it would no doubt amount to hearsay; and secondly, the copy of the unstamped contract annexed to Lillian Angai’s affidavit could not be given in evidence contrary to s.19(1) of the Stamp Duties Act.  Mr. Masket Iangalio, the Managing Director of the Respondent was in a better position to give evidence about the contract and whether or not the contract had been stamped which is a process administered in law before conveyancing documents are lodged with the Department of Lands and Physical Planning for Ministerial approval.  Section 19 states:

	“19.	UNSTAMPED INSTRUMENTS PRODUCED IN EVIDENCE
(1)	Subject to this Act, an instrument shall  not –
(a)	be pleaded or given in evidence, except in criminal proceedings; or
(b)	be admitted to be good, useful or available in law,
unless it is duly stamped in accordance with the law in force at the time when- 
(c)	it was first executed; or
(d)	it came into the country.
whichever is the later.”  

23.  In any event, we consider that the matters raised by the Appellants are inconsequential because the copy of the contract was contained in the affidavit of Masket Iangalio and to which no issue about its admissibility into evidence was raised either by the Appellants or by the National Court at the hearing of the District Court appeal. 

24.	As to whether the Land in Dispute was not bona fide in dispute because the Respondent had a clear title over it, we make the following observations.  First of all, we find no error in the findings made by the National Court.  

25.	The Respondent is named on the second page of its copy of the title to the Land in Dispute as its proprietor.  Section 32(a) of the Land Registration Act was considered by the National Court and it states:

“Where an instrument of title – 
(a)	describes a person as the registered proprietor of an estate or interest…
that person is the registered proprietor of the estate or interest.”

26.	The terms “dealing”, “document” and “instrument” are defined in s.2 of the Land Registration Act.  The term “instrument”  ‘includes a certificate of title and a document relating to a dealing’. The term “dealing” ‘means a disposition of an estate or interest otherwise than by way of transmission and includes a transfer, lease, surrender, mortgage, charge, discharge, easement and similar interest, and nomination of trustees.’  The term “document”  “means any writing relating to land whether of a formal nature or otherwise and includes a will, register, map or plan.” Considering and appreciating the definitions of those terms, the Respondent was named and described on the second page of its copy of the instrument of title as the registered proprietor of the Land in Dispute.  The instrument of transfer, a conveyancing document and being a dealing was registered by entry or memorial on the title under Journal No.S.35361 which was produced to the Registrar for registration on 17 August 2004 at 9:06 am and registered on 18 August 2004.   The effective date of registration was the date when the instrument of transfer was produced to the Registrar for registration and that was on 17 August 2004 pursuant to s.27 of the Land Registration Act.

27.	As to the question of whether the Respondent had a clear title, s.33(1) of the Land Registration Act is relevant to the determination of that question and it 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…..”

28.	Under Papua New Guinea’s Torrens Title system of land registration for alienated State land, the Respondent is protected by the principle of indefeasibility of title.  The registration of the title in the Respondent’s name vested in it an indefeasible (unforfeitable) title subject only to the exceptions in s.33(1) of the Land Registration Act.  The seminal decision of the Supreme Court of Mudge v Secretary for Lands [1985] PNGLR 387 which has been cited with approval in numerous decisions of the National Court and the Supreme Court since its pronunciation is authority for the principle that registration of leases under the provisions of the Land Registration Act vests an indefeasible title in the registered proprietor subject only to the limited exceptions enumerated in s.33(1) of the Land Registration Act.

29.	In the National Court decisions of Yandu v Waiyu (2005) N2894 and Siwi v Mathew (2006) N3048 both decided by Cannings J, His Honour reiterated that the District Court is dispossessed of jurisdiction by operation of s.21(4)(f) of the District Courts Act if the title to land is bona fide in dispute.  In both cases, His Honour held that a proprietor of land is protected under s.33 of the Land Registration Act which provides for indefeasibility of title. In Yandu v Waiyu (2005) N2894, from headnote (2), His Honour held:

“If the registered proprietor of a State Lease commences proceedings in the District Court to enforce their interest in land there is no bona fide dispute about title to the land unless some other person demonstrates that they have taken some distinct formal legal steps to disturb that title.” 

30.	A similar observation was made by His Honour in Siwi v Mathew (2006) N3048 and noted at headnote (2).

31.	Section 33(1) of the Land Registration Act states that the registered proprietor of an estate interest holds it absolutely free from all encumbrances expect in the case of fraud and other limited exceptions specified there.

32.	In the recent Supreme Court decision of Camilus v Mota (2022) SC2210, the Supreme Court in a majority decision per Manuhu J and Narokobi J stated that “fraud” for the purpose of s.33(1)(a) of the Land Registration Act means actual fraud or constructive fraud.

33.	The evidence before the District Court was that challenges to the validity of the transfer of the title of the Land in Dispute from PNGBC or BSP to the Respondent by court proceedings mounted in both the National Court and the Supreme Court were all unsuccessful and so the Respondent had a clear title.  At the time of hearing the District Court appeal, there was no other court proceeding challenging the validity of the Respondent’s title to the Land in Dispute on the basis of fraud or otherwise.

34.	We endorse the principle propounded by Cannings J in Yandu v Waiyu (2005) N2894 and Siwi v Mathew (2006) N3048 and concur with the National Court decision that there was no bona fide dispute as to the title to the Land in Dispute because the Respondent had a clear and indefeasible title over it and the Appellants failed to demonstrate that they had successfully taken some distinct formal legal steps to disturb that title.

CONCLUSION

35.	Given this, we will dismiss all of the grounds of appeal raised by the Appellants. The Respondent has a clear and indefeasible title to the Land in Dispute and is protected by s.33(1) of the Land Registration Act. 

ORDERS

36.	The formal orders of the Court are:

1.	The appeal is dismissed in its entirety.
2.	The National Court decision made on 18 August 2017 in WS No.1181 of 2009, John Angai v Gemini Holdings Limited and the Bank of South Pacific Limited is affirmed.
3.	The Respondent’s cost of an incidental to the appeal shall be paid by the Appellants which shall, if not agreed, be taxed.
4.	Time is abridged.  

Judgment and orders accordingly.

______________________________________________________________
Gibson Bon Lawyers: Lawyers for the Appellants	
Kamen Lawyers: Lawyers for the Respondent