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Kunjil No. 19 Ltd v Samson [2024] PGSC 143; SC2677 (19 December 2024)

SC2677

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 39 OF 2023

BETWEEN:
KUNJIL NO. 19 LIMITED
Appellant

AND:
BENJAMIN SAMSON
AS DEPUTY REGISTRAR OF TITLES,
DEPARTMENT OF LANDS & PHYSICAL PLANNING
Second Respondent

AND:
HARRY WASA
REGISTRAR OF TITLES,
DEPARTMENT OF LANDS & PHYSICAL PLANNING
Third Respondent

AND:
PEPI KIMAS
SECRETARY FOR DEPARTMENT OF LANDS & PHYSICAL PLANNING
Fourth Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUIUNEA
Fifth Respondent

AND:
CHRISTOPHER I.W JAMINAN
AS ADMINISTRATOR OF THE ESTATE OF LATE JOHN JAMINAN
Sixth Respondent

WAIGANI: LOGAN J, FRANK J, DOWA J
30 OCTOBER, 19 DECEMBER 2024

REAL PROPERTY – Land Registration Act, 1981, s.33 – Fraud – Registration of land – Registered proprietor’s title is indefeasible, unless such title is obtained through fraud or through serious or gross irregularities arising out of the breaches of the mandatory statutory procedures under the Land Act – In the latter cases, fraud is not the essential element to invalidate title – Fraud means actual fraud or fraud by the registered proprietor

PRACTICE AND PROCEDURE – Pleadings – Fraud – Fraud is a serious matter and therefore the plaintiff who alleges fraud must plead the particulars of fraud by setting out the facts upon which fraud is alleged – Fraud must be strictly proven

REAL PROPERTY – Sale of property – Allegations of unconscionable conducts against the vendor and the purchaser – No evidence of the plaintiff being at a disadvantage or at a special disadvantage – Parties dealing with each other on an equal footing – Conduct not unconscionable – Circumstances in which unconscionable conduct may arise

Facts:

The appellant became the registered owner of a State lease in Boroko (the leasehold interest) in 2000, after a transfer from the now deceased Mr Jaminan (former first respondent). The former first respondent then made allegations that the balance of the purchase price for the leasehold interest had not been paid.

After receiving these allegations, the Registrar of Titles (Registrar) conducted an investigation and determined that the appellant’s title should be cancelled. The appellant then commenced proceedings and claimed that the cancellation of its title by the Registrar was fraudulent and thus the former first respondent’s restored title to the leasehold interest was defeasible.

The primary judge found that the initial transfer from the former first respondent to the appellant had been procured by fraud and that the Registrar had acted within their powers under the Land Registration Act 1981 in cancelling the appellant’s title.

Held:

1. The Court (Logan J, Frank J and Dowa J): The primary judge erred in making a finding of fraud relating to the initial transfer. This is because the evidence before the primary judge was insufficient to sustain such a finding and the primary judge failed to refer to the standard of proof, as articulated in Paga No 36 Ltd v Eleadona [2018] PGSC 17; SC1671 in its adoption of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, required for making findings on such grave allegations.
   
2. The Registrar had no power to cancel the appellant’s title under ss 160 and 161 of the Land Registration Act, without following the process provided for in s 160.
   

Cases cited

Papua New Guinean cases
Aipa v Samson [2012] PGNC 185
Berkefeld v Berkefeld [1953] PGSC 9
Boyle v Boyle [1960] PGSC 19
H.Q.H Enterprises Ltd v Wangbao Trading Ltd [2023] PGSC 69; SC2419
Helai v Samson [2024] PGSC 90; SC2625
Jaro Investment Ltd v Ane [2022] PGSC 5
Paga No 36 Ltd v Eleadona [2018] PGSC 17; SC1671
Raumai No 18 Ltd v Country Motors Ltd [2018] PGNC 592; N7952
Timothy v Timothy [2022] PGSC 82; SC2282

Overseas cases
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Maddison v Alderson (1883) 8 AC 467
Pipikos v Trayans [2018] HCA 39; (2018) 265 CLR 522

Legislation
Constitution
Frauds and Limitations Act 1988
Land Registration Act 1981

Counsel
Mr J Apo for the Appellant
Mr D Gamaf for the Second to Fifth Respondents
Mr D Aigilo for the Sixth Respondent

1. BY THE COURT: On 29 September 2000, Kunjil No 19 Pty Ltd (Kunjil), the appellant, became the registered proprietor under the Land Registration Act 1981 of a State lease (leasehold interest) in respect of land at Allotment 8 Section 25, Boroko, National Capital District (the land). That registration was a sequel to a contract in writing in respect of the sale for K150,000 of the leasehold interest, undated but apparently made in or about January 2000 between the late Mr John Jaminan and Kunjil. Settlement under that contract occurred on or about 31 July 2000.
   
2. The late Mr Jaminan was originally named as first respondent. The Court directed that the title of the proceedings be amended by removing the late Mr Jaminan as a party, because of his demise and because his interests were wholly represented by the executor of his estate, the sixth respondent, to whom letters of administration had been granted.
   
3. The late Mr Jaminan became the registered proprietor of the leasehold interest in respect of the land in 1997 when it was transferred to him by the National Housing Corporation.
   
4. Kunjil is an entity associated with the Police Association of PNG Inc. (Association), which is its sole shareholder. Related to the Association is a trust fund, the Police Association Welfare Fund (PAWF).
   
5. At the time when Kunjil became the registered proprietor of the leasehold interest in 2000, Mr Patrick Kolta, the principal of an accounting firm, Kolta & Associates, provided accounting services to the Association. Mr Kolta had also passed away by the time of the trial.
   
6. A copy of what at least purported to be the contract of sale as between the late Mr Jaminan and Kunjil was in evidence at the trial. On its face, it was signed for Kunjil by its director, Swapna De, whose signature was witnessed by a Jill Kolta, and by the late Mr Jaminan, the apparent signature of whom was not witnessed. Also in evidence was a settlement sheet prepared in respect of the transfer to Kunjil by Henao Lawyers, together with a related covering letter. The settlement sheet is consistent with the contract purchase price of K150,000 and records adjustments and related dealings with the late Mr Jaminan concerning the conveyance. It is unclear on the face of the settlement sheet and its covering letter whether Henao Lawyers acted for each of the parties to the transfer, although the more likely inference from the documents is that that firm acted only for Kunjil.
   
7. Also in evidence in the National Court were letters dated 10 April 2000 and 20 December 2000 from the late Mr Jaminan to the late Mr Kolta alleging that a balance of K350,000.00 was outstanding in respect of the sale of the leasehold interest. The letter dated 10 April 2000 was addressed to Mr Kolta for the attention to a Mr Deb Kumar De (inferentially related to the signatory on the contract); the second letter was just addressed to Mr Kolta.
   
8. The late Mr Jaminan wrote a letter dated 25th August 2009 to the then Registrar of Titles in which he alleged that he had found out that Mr Kolta had borrowed funds from PAWF to pay him the deposit of K150,000.00; and therefore PAWF were interfering in his property and that he had no knowledge of the funds Mr Kolta took from the PAWF. In this letter, the late Mr Jaminan also applied for a replacement copy of his title deed in respect of the subject leasehold, stating that his copy was lost sometime in March 2000. He also enclosed copies of his letters to the Ombudsman Commission, his letter to Mr Kolta to pay him the remaining K350,000.00 and, amongst other documents, a newspaper article dated 26th August 2009 in which the late Mr Jaminan accused the Association of illegally taking over his house and referred to what he stated was an agreement by which he was to receive the balance of the purchase price of K500,000.00; of which he had only received K150,000.00. The late Mr Jaminan also referred to the occupation of his house by a Mr Robert Ali who was the President of the Association and had lived in the house for about 6 years until he was evicted. In the newspaper article, the General Manager of the Police Association Credit (Welfare) Fund also stated that Mr Kolta had used the Association’s Funds to pay Mr Jaminan. The late Mr Jaminan also claimed to the Registrar that his signature was forged to execute the transfer documents.
   
9. Upon receiving this complaint letter and its enclosures, the Registrar’s office conducted an investigation. Before the primary judge, the second respondent, Deputy Registrar Samson, deposed that this investigation revealed the following:
   
   • (a) That Mr John Jaminan did not consent and was not aware of the sale of the property to Kunjil; and
   • (b) That Mr Jaminan only made a verbal agreement with a Patrick Kolta for an agreed purchase price of K500,000.00; and not with Kunjil for K150,000.00; and
   • (c) That the process and procedures for a replacement title under section 162 of the Land Registration Act were not followed prior to the transfer to Kunjil where a notice for the replacement title was not published in the National Gazette and the daily newspapers as a mandatory requirement under the Land Registration Act.
10. Via a letter dated 20 November 2009, Deputy Registrar Samson wrote to the Association and Kunjil regarding the findings of the investigation and summoned them to deliver up for cancellation of Kunjil’s title to the subject leasehold interest, unless reasonable cause was shown in 14 days. By a letter dated 19 May 2010, Deputy Registrar Samson again wrote to the Association stating that, after receiving no response from the Association and Kunjil regarding the investigations on the complaints lodged by the late Mr Jaminan, he was compelled to believe that the Association and Kunjil had no interest in the matter and therefore he notified the Association that he had proceeded to cancel Kunjil’s title registration. Deputy Registrar Samson further advised that, if Kunjil were aggrieved by his decision, it could seek redress in Court.
    
11. As pleaded, Kunjil’s case in the National Court entailed allegations that the late Mr Jaminan fraudulently represented to the Registrar and Deputy Registrar position in relation to the contract for the transfer of the leasehold interest in the land to Kunjil and that thereafter the Registrar and the Deputy Registrar fraudulently conspired and cancelled the registration of Kunjil as the registered proprietor and reissued the title to the name of the late Mr Jaminan. Kunjil further alleged that it only became aware that its title was cancelled when proceedings were filed in the District Court by the late Mr Jaminan. Kunjil sought an order quashing the decision to cancel its registered proprietorship of the leasehold interest and directing that it be recorded on the register as the registered proprietor.
    
12. The Defence filed on behalf of the late Mr Jaminan and his executor alleged that the subject leasehold was not sold to Kunjil for the purchase price of K150,000; and that Kunjil or Mr Kolta still owed the balance of the purchase price of true agreed K500,000. For their part, the various State parties, being the Registrar, the Deputy Registrar and the State itself, denied fraud.
    
13. The learned primary judge did not address Kunjil’s case as pleaded. Instead, a different subject was addressed and answered. That was whether Kunjil had procured the registration of its leasehold interest by fraud. As to this, the primary judge found that there was evidence of actual fraud in the transfer and registration of the leasehold interest to Kunjil. Accordingly, the primary judge concluded that, in light of s 33(1) of the Land Registration Act, Kunjil’s title could not stand.
    
14. The primary judge decided whether the registration of the leasehold interest fell within the fraud exception to indefeasibility found in s 33(1) of the Land Registration Act on the understanding that actual fraud had to be proved. That is the very longstanding, orthodox understanding of the meaning of that exception in jurisdictions which have a Torrens system of title by registration of interests in land but it must be acknowledged that, in Papua New Guinea, a school of thought has latterly developed that proof of constructive fraud is alternatively sufficient: see Timothy v Timothy [2022] PGSC 82; SC2282 and Helai v Samson [2024] PGSC 90; SC2625 where the authorities in this jurisdiction and overseas are discussed. It was not suggested in this appeal that the result could have been any different had the primary judge also looked to constructive fraud and the admissible evidence is such that it could not have been. It is not therefore necessary in this appeal to resolve whether the alternative, constructive fraud school of thought is correct.
    
15. The primary judge further concluded that Kunjil’s registered leasehold interest in the land had been properly cancelled by the Registrar and correctly reverted to the estate of the late Mr Jaminan. In so doing, the learned primary judge made these observations about the meaning and effect of s 160 and s 161 of the Land Registration Act:

From finding that there was fraud involved in the transfer of the subject property to the Plaintiff, the Registrar of Titles under section 161 was entitled to cancel the registration in the name of the Plaintiff after his summons by way of letters to the Plaintiff Company through the address as stated at the Company Extract at IPA where there was no response from the Plaintiff. Section 161 (2) of the Land Registration is not in mandatory terms, it leaves it to the discretion of the Registrar to seek from the Court an order to summon the person in possession of the title to deliver the title. The Registrar was not bound to go to Court and obtain a summons, the Registrar in my view was entitled to take the steps he did, and I see no breach of section 161 in this regard.

[Emphasis added]

16. Two grounds of appeal were pressed on behalf of Kunjil:
    
    1. That the orders made by the primary judge were beyond power, insofar as no party sought relief in those terms; and
    2. That the primary judge was wrong in law in the interpretation of the Registrar’s powers under ss 160 and s 161 of the Land Registration Act.
17. The position advanced on behalf of the late Mr Jaminan was that the primary judge was entitled to reach a conclusion as to fraud in respect of the transfer to Kunjil of the leasehold interest and that there was no error in the construction of the meaning and effect of ss 160 and 161 of the Land Registration Act. The State parties also submitted that there was no such statutory construction error.
    
18. In the course of submissions on the appeal, the Court raised with the parties the adequacy of the evidence in the case to support a conclusion of actual fraud or even constructive fraud in the transfer to Kunjil, even if the court below was entitled to examine that transfer.
    
19. It is convenient first to assume that the primary judge was entitled to embark upon a consideration of whether the transfer to Kunjil was procured by fraud and to consider whether the evidence before the Court admitted of such a conclusion.
    
20. The fraud found by the primary judge was actual fraud. To allege and find such conduct is a very serious thing, even in a civil proceeding.
    
21. In Paga No 36 Ltd v Eleadona [2018] PGSC 17; SC1671 and coincidentally in the context of the fraud exception to indefeasibility of title for which s 33 of the Land Registration Act provides, this Court made several presently pertinent observations. The Court observed, at [29], that the onus of proving such an exception to indefeasibility, or any other for that matter, lies with the party challenging the title. Further, as to the standard of proof required in respect of such an allegation the Court cited with approval, at [33] and [34], the following observations respectively made by Latham CJ and Dixon J (as his Honour then was) in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. In that case, at 343-344, Latham CJ stated:
    

There is no mathematical scale according to which degrees of certainty of intellectual conviction can be computed or valued. But there are differences in degree of certainty, which are real, and which can be intelligently stated, although it is impossible to draw precise lines, as upon a diagram, and to assign each case to a particular subdivision of certainty. No court should act upon mere suspicion, surmise or guesswork in any case. In a civil case, fair inference may justify a finding upon the basis of preponderance of probability. The standard of proof required by a cautious and responsible tribunal will naturally vary in accordance with the seriousness or importance of the issue—See Wills’ Circumstantial Evidence (1902), 5th ed., p. 267, note n: “Men will pronounce without hesitation that a person owes another a hundred pounds on evidence on which they certainly would not hang him, and yet all the rules of law applying to one case apply to the other and the processes are the same.”

In criminal cases it has long been established that there must be a moral certainty of the guilt of the accused; the presumption of innocence must be definitely displaced either by direct evidence of facts which constitute the offence charged or by evidence from which the jury can draw an inference which satisfies the mind beyond reasonable doubt. The difference between the civil standard of proof and the criminal standard of proof has been examined and explained in this court in the case of Brown v. The King [1913] HCA 70; (1913) 17 C.L.R. 570. See particularly at pp. 584 et seq. and pp. 595, 596. Accordingly I am not prepared to adopt the view, which was suggested in argument, that the difference between the criminal and civil standards of proof is really only a matter of words. (Emphasis and citations added in Paga No 36 Ltd v Eleadona.)

Also in that case, Dixon J stated, at 362-363:

It is often said that such an issue as fraud must be proved “clearly”, “unequivocally”, “strictly” or “with certainty” (Cf. Mowatt v. Blake (1858) 31 LT. (O.S.) 387; Kisch v. Central Railway Co. of Venezuela Ltd. (1865) 12 L.T. 295; Lumley v. Desborough (1870) 22 L. T. 597). This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues (Doe d. Devine v. Wilson [1855] EngR 708; (1855) 10 Moo. P.C.C. 502, at pp. 531, 532; [1855] EngR 708; 14 E.R. 581, at p. 592; Boyce v. Chapman [1835] EngR 942; (1835) 2 Bing. N.C. 222; 132 E.R. 87; Vaughton v. London and North Western Railway Co. [1874] UKLawRpExch 4; (1874) L.R. 9 Ex. 93; Hurst v. Evans (1917) 1 K.B. 352; Brown v. McGrath [1920] SALawRp 10; (1920) S.A.L.R. 97; Motchall v. Massoud [1926] ArgusLawRp 22; (1926) V.L.R. 273; Nelson v. Mutton (1934) 8 A.L.J. 30; Gerder v. Evans (1933) 45 Ll L. Rep. 308, at p. 311; sed quœre as to the statement of Swift J. in Herbert v. Poland (1932) 44 Ll L. Rep. 139. at p. 142; see, further, Wigmore on Evidence, 2nd ed. (1923), vol. v., p. 472, par. 2498 (2) (1)). But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.

(Emphasis and citations added in Paga No 36 Ltd v Eleadona.)

22. Yet further Dixon J also stated in Briginshaw v Briginshaw, at 362, that “reasonable satisfaction” “should not be produced by inexact proofs, indefinite testimony, or indirect references”.
    
23. In Paga No 36 Ltd v Eleadona, at [37], the Court went even further, opining that in civil cases where an allegation of fraud was made, “proof commensurate to the standard required in criminal proceedings – that is, proof beyond reasonable doubt” was required. It is not, with respect, necessary for us to consider whether that further statement in Paga No 36 Ltd v Eleadona goes beyond the standard of proof required in a case which is civil, not criminal, in character. It is enough to recognise that proof of a grave allegation is not engendered, even on the balance of probabilities, by what Dixon J termed “inexact proofs, indefinite testimony, or indirect references”.
    
24. This feature of proof of facts in civil litigation has been recognised many times in this jurisdiction in the application of the discussion in Briginshaw v Briginshaw and also was so prior to Independence: see Boyle v Boyle [1960] PGSC 19 in which, in the exercise of matrimonial causes jurisdiction, the Court declined to uphold an allegation of adultery grounding a divorce petition in circumstances where the evidence was at best equivocal and contrast Berkefeld v Berkefeld [1953] PGSC 9 in which, in the exercise of the like jurisdiction, the evidence was regarded as sufficient to prove such a grave allegation.
    
25. It is not apparent from the record before us that the learned primary judge was assisted by counsel at trial as to the quality of proof needed in a civil proceeding where fraud was alleged, on whom the onus lay in relation to the exception on this ground to what was otherwise Kunjil’s indefeasibility of title by registration in respect of the leasehold interest or, for that matter otherwise at all in relation to the law of evidence. The reasons for judgment of the primary judge are devoid of any overt reference to the onus and standard of proof applicable in a civil case where fraud was alleged. There is nothing otherwise in the reasons which would admit of an inference that, nonetheless, there was advertence to these essential subjects in such a case.
    
26. In truth, the only admissible evidence in relation to the transfer to Kunjil of the leasehold interest comprised the copy of the contract of sale (as the best available evidence of that document) and the settlement sheet and covering letter, being business records of the legal practice. This evidence was consistent only with a conclusion that the leasehold interest was transferred to Kunjil for a consideration of K150,000 (with consequential adjustments at settlement as contractually contemplated). Moreover, it was evidence contemporaneous with the transfer and consequential registration of title said to be vitiated by fraud.
    
27. Moreover, and with the object of preventing fraud, s 4 of the Frauds and Limitations Act 1988 provides:

4 CONTRACTS FOR THE SALE OF LAND, ETC.

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.

28. The assertion made on behalf of the late Mr Jaminan that the true contract price was K500,000 was at odds with this statutory prescription. Of course, a provision such as s 4 of the Frauds and Limitations Act might in certain circumstances prove a vehicle for fraud. This was long ago recognised by the Earl of Selborne LC, who reconciled an apparent tension between the equivalent English statutory provision concerning contracts for the sale of land and the equitable doctrine of part performance in Maddison v Alderson (1883) 8 App Cas 467, at 479 by holding that for the court to order the specific performance of an oral contract for the sale of land, “the acts relied upon as part performance must be unequivocally, and in their own nature, referable to some such agreement as that alleged”: see also Pipikos v Trayans [2018] HCA 39; (2018) 265 CLR 522, at [64]. Here, there was no such admissible evidence of acts of part performance referable to an oral agreement for sale at a price of K500,000 which might have grounded an action in equity for specific performance of the oral agreement.
    
29. Apart from the admissible evidence mentioned, there were assertions in correspondence. These were not probative of anything.
    
30. On its face, the contract was signed by the late Mr Jaminan. Contrary to the view of the primary judge, there was no need for the late Mr Jaminan’s signature to be witnessed for there to be a binding contract for the sale of the leasehold interest. Some two decades after the impugned contract, disturbing by admissible evidence the position prima facie revealed on the face of the contract presented formidable difficulties. The two persons who had dealt with one another in relation to the transfer of the leasehold interest, the late Mr Jaminan and the late Mr Kolta, had died prior to trial. There was no admissible evidence which would support a conclusion that the vendor’s signature was anything other than that of the late Mr Jaminan. Such a conclusion might have been grounded in expert handwriting evidence, based on a proven signature of the late Mr Jaminan and that on the contract and an opinion that the latter was not his. But no such evidence was called.
    
31. This was a case where the only contemporaneous, admissible evidence led at trial pointed to for the sale to Kunjil by the late Mr Jaminan of the leasehold interest for K150,000. Further, the solicitor’s settlement sheet recorded dealings with the late Mr Jaminan in terms of adjustments to be made at settlement which were consistent only with a contract for the sale of the leasehold interest for a sale price of K150,000. The opposing case never even rose to the level of “inexact proofs, indefinite testimony, or indirect references”. There was no admissible evidence at all either that the true purchase price was K500,000 or of unequivocal acts by Kunjil referable only to some oral agreement to sell at that price.
    
32. None of this is to deny that there may be some, including the sixth respondent, who genuinely believe that there was a dealing between the late Mr Jaminan and, on behalf of Kunjil, the late Mr Kolta in respect of the leasehold interest in the land which entailed an overall sale price of K500,000. However, the judicial obligation was to decide by reference to admissible evidence whether that sale and consequential registration of title was tainted by fraud. And the onus of proving that lay on the sixth respondent as the executor of the late Mr Jaminan’s estate.
    
33. Thus, on the subject of whether the fraud indefeasibility exception to Kinjil’s title by registration of the leasehold interest was established, had the primary judge adverted to what was said in Paga No 36 Ltd v Eleadona as to the onus and standard of proof, the only conclusion reasonably open on the evidence was that the exception was not proved. The primary judge’s conclusion to the contrary was not, with respect, reasonably open on the evidence.
34. It follows that the declaration that the transfer and registration of the leasehold interest in the land was effected through fraudulent means must be set aside.
    
35. That conclusion means that, strictly, it is not necessary to resolve whether it was open to the primary judge even to address, much less answer, the question of whether that transfer to Kunjil and related registration of its interest were effected by fraud. However, the point was fully argued and it is desirable to address it.
    
36. It was, with respect to the primary judge, certainly an unorthodox move to address the question of whether that transfer and related registration of its interest were effected by fraud. After all, the fraud pleaded by the appellant was very different and the system of justice for which the National Court Rules provide in relation to the resolution of civil causes of action is adversarial, with the issues being defined by the parties via the pleadings not inquisitorial and judge led. Moreover, s 59 of the Constitution obliged the primary judge to afford the parties procedural fairness.
    
37. All this said, although the fraud pleaded and alleged by Kunjil concerned the cancellation of its title, not the earlier registration and preceding sale, the case pleaded on behalf of the late Mr Jaminan always entailed an allegation that the transfer and registration of the leasehold interest in Kunjil’s name had been procured by fraud. The record discloses that it was that case that the parties addressed at trial. In circumstances where the parties so conducted the case, it was open to the primary judge to determine it accordingly. Such an exercise of judicial power was authorised by s 155(4) of the Constitution. Further, as each party had and took up an opportunity to be heard in respect of the issue, there was no violation of s 59 of the Constitution in determining that issue.
    
38. As to the allegation by Kunjil of fraud in relation to the cancellation of its title, it is only necessary to observe that the onus of proof on this issue fell on Kunjil with the standard of proof being no different to that described in Paga No 36 Ltd v Eleadona with reference to Briginshaw v Briginshaw. There was no evidence of fraudulent collusion between either the late Mr Jaminan, or anyone acting in his interest, with anyone within the Titles Office to procure the cancellation of Kunjil’s registered interest. That is so irrespective of whether or not the actions taken within that office were or were not in conformity with the Land Registration Act.
    
39. We now address that subject.
    
40. Sections 160 and 161 of the Land Registration Act provide:
    
    160. PRODUCTION OF INSTRUMENTS WRONGLY ISSUED, ETC.

(1) Where it appears to the satisfaction of the Registrar that–

(a) an instrument has been–

(i) issued to a person in error; or

(ii) fraudulently or wrongly obtained by a person; or

(b) an instrument is fraudulently or wrongly retained by a person; or

(c) an instrument held by a person contains a misdescription of the boundaries, area or position of land; or

(d) an instrument held by a person contains an entry or endorsement–

(i) made in error; or

(ii) fraudulently or wrongly obtained; or

(e) an instrument of title is held by a party to an ejectment action whose right to the land has been determined,

he may summon that person to deliver up the instrument.

(2) Where a person refuses or neglects to comply with a summons under Subsection (1), or cannot be found, the Registrar may apply to the Court to issue a summons for that person to appear before the Court and show cause why the instrument should not be delivered up.

(3) Where a person served with a summons issued under Subsection (2) refuses or neglects to attend before the Court at the time appointed by the summons, the Court may issue a warrant directing the person so summoned to be apprehended and brought before the Court for examination.

(4) On the appearance before the Court of a person summoned under Subsection (2), or apprehended by the warrant under Subsection (3), the Court may examine him on oath and order him to deliver up the instrument.

(5) Where a person refuses or neglects to comply with an order under Subsection (4), the Court may commit him to a corrective institution for a period not exceeding six months unless the instrument is sooner delivered up.

(6) Where a person–

(a) has absconded or keeps out of the way so that a summons under Subsection (2) cannot be served on him; or

(b) has refused or neglected to comply with an order under Subsection (4), the Registrar shall, if the circumstances of the case so require–

(c) issue to the proprietor of the land an instrument as provided in this Act in the case of a certificate of title lost or destroyed; and

(d) enter in the Register–

(i) notice of the issue of an instrument and the circumstances under which it was issued; and

(ii) such other particulars as he thinks necessary.

161. CANCELLATION AND CORRECTION OF INSTRUMENTS AND ENTRIES.

(1) Subject to Subsection (2), the Registrar may–

(a) cancel or correct an instrument delivered up under Section 160; and

(b) in any other case, on such evidence as appears to him sufficient, correct errors or omissions in–

(i) the Register or an entry in the Register; or

(ii) the other duplicate certificate of title or an entry on that duplicate.

(2) Where a correction is made under Subsection (1)–

(a) the Registrar–

(i) shall not erase or render illegible any words; and

(ii) shall affix the date on which the correction was made together with his initials; and

(b) the Register or other duplicate certificate of title so corrected has the same validity and effect as if the error had not been made except as regards an entry made in the Register before the time of correcting the error.

(3) Where the Registrar is satisfied that a matter in a certificate of title does not affect the land to which the certificate relates he may record on the title the cancellation of that matter in such manner as he considers proper.

41. It does not appear from the record that the primary judge was assisted by counsel in relation to case law concerning the meaning and effect of s 160 and 161 of the Land Registration Act. Further, no supporting case law is cited by the primary judge for the views expressed in the judgment concerning these provisions. Yet applicable, and binding, case law did then exist and it does not, with respect, support the conclusions reached by the primary judge, especially the emphasised part thereof in [15] above.
    
42. In Jaro Investment Ltd v Ane [2022] PGSC 5, at [46], this Court endorsed views expressed in the National Court in two earlier cases concerning the meaning and effect of ss 160 and 161 of the Land Registration Act: Aipa v Samson [2012] PGNC 185 (Cannings J) and Raumai No 18 Ltd v Country Motors Ltd [2018] PGNC 592; N7952 (Gavara-Nanu J).
    
43. In Aipa, at [6] – [7], Cannings J stated:
    
    6. Mr Geita for the defendants submitted that the issuance of a summons (by either the Registrar of Titles or the National Court) under Section 160 is not a precondition to exercise of the power of cancellation under Section 161(1)(a) as the exercise of the power to issue a summons is conditioned by the word “may” that appears in Sections 160(1) (“the Registrar may summon that person to deliver up that instrument”) and 160(2) (“the Registrar may apply to the Court to issue a summons”).
    7. I agree with Mr Geita that the Registrar of Titles has a discretion as to whether he issues a summons or applies to the Court to issue a summons (the procedure employed in Kavana v Hunter (2007) N3208). However, that is no answer to the plaintiffs’ proposition that that exercise of the power under Section 160 is a precondition to exercise of the power of cancellation under Section 161. I uphold the plaintiffs' proposition as I am satisfied that Section 161(1) draws a distinction between on the one hand cancelling or correcting an instrument and on the other hand correcting an error or omission in the Register or an entry in the Register. The power to “cancel” an instrument under Section 161(1)(a) can only be exercised in relation to an instrument delivered up under Section 160. Cancellation of an instrument must be preceded by the issuance of a summons and a delivering up of the instrument.
44. In Raumai No 18, at [13] – [29], Gavara-Nanu J stated:
    13. Mr Molloy argued that as part of the procedure s.161 confers two general powers on the Registrar. First is substantive, and is conferred by s.161 (1) (a). The Registrar exercises this power when cancelling instruments such as State Leases and issuing new ones. The exercise of this power affects rights, such as the title holder’s right to hold title. There are inherent safeguards in the procedure to protect the title holder’s right to be heard and to prevent abuse of power by the Registrar. The safeguards are prescribed by both ss. 160 and 161. Second is limited in scope and is conferred by s. 161(1) (b). The exercise of this power is limited to correcting minor errors and or omissions in the Register or in a certificate of title. The exercise of this power may not affect rights.
    14. It was argued that proper and valid exercise of anyone of the two powers by the Registrar can only occur after a summons or a direction had been issued to a title holder to deliver up his title, and that the title had been delivered up.
    15. Mr Molloy argued that the word ‘may’ in s.160 (1) relates to the decision the Registrar may make to issue a summons to a title holder to deliver up his title, either for cancellation or to correct an error. It was submitted that the word connotes the exercise of discretion by the Registrar whether to issue a summons or not. For example, a decision the Registrar has to make on whether to issue a summons after it is shown that the title is prima facie free from alleged errors or anomalies.
    16. Mr Molloy submitted that in this instance the second defendant exercised the substantive power under s. 161 (1) (a) in cancelling the plaintiff’s title, thus depriving the plaintiff the right to hold title. It was argued that the second defendant should have followed the procedure set out under s.160 (2) so that if the plaintiff neglected or refused to deliver up its title, he could then take the next step which was to make an application to the National Court to seek orders for the plaintiff to show cause.
    17. It was submitted that the second defendant acted ultra vires in cancelling the plaintiff’s title without making an application to the National Court to seek orders for the plaintiff to show cause. Thus, it was claimed that the plaintiff was not given an opportunity to be heard on claims of fraud made against it before its title was cancelled. The plaintiff relied on Aipa v. Samson, Deputy Registrar of Titles (2012) N4777. In that case, the National Court held that in a case of this kind, cancellation of an instrument such as a State Lease should be preceded by a summons being issued for the title holder to deliver up his title. That case did not address the issue regarding the need for the Registrar to make an application to the National Court for orders that the title holder show cause.
    18. Mr. Yano, counsel for the State argued that once the second defendant was satisfied that fraud was involved in the transfer of the land to the plaintiff, the second defendant had discretion pursuant to the word "may" in s. 161 whether to cancel the title or to apply to the National Court under s. 160 (2) for an order that the plaintiff show cause. He argued that the second defendant properly exercised his discretion in taking the first option to cancel the plaintiff's title. He relied on Raga Kavana, Registrar of Titles, Department of Lands and Physical Planning v. Colin Edwin Hunter (2007) N3208.
    19. I find that this case is distinguishable from Raga Kavana, Registrar of Titles, Department of Lands and Physical Planning v. Colin Edwin Hunter (supra). In that case, the plaintiffs applied to the National Court seeking orders for the defendants to show cause after they failed to deliver up their title despite being issued with a summons by the Registrar. This case did not go that far, viz; no application was made by the Registrar to the National Court to seek orders that the plaintiff show cause.
    20. Notably, the defendants do not dispute that the second defendant did not give the plaintiff an opportunity to be heard before cancelling its title. To my mind, this was a fundamental error resulting from wrong exercise of discretion by the second defendant. The fact that the second defendant may have thought that fraud was involved in the transfer of the land to the plaintiff is irrelevant. What is relevant is how he exercised his discretion in cancelling the plaintiff’s title.
    21. I accept Mr Molloy’s argument that s. 161 (a) and (b) confer two general powers on the Registrar. I also accept his argument that anyone of the two powers can only be validly exercised after a summons or a direction had been issued to a title holder to deliver up his title and that the title had been delivered up.
    22. If the summons or direction issued under s. 160 (1) is not heeded, then an application should be made to the National Court under s. 160 (2) for a summons or an order to be issued to the title holder to show cause.
    23. In this case, there is no evidence that the plaintiff neglected or refused to deliver up its title. Even if there was such evidence, the second defendant still had discretion to inquire further and ascertain the reasons for the title holder not delivering up its title. Such an approach would ensure that a title holder is given adequate opportunity to be heard.
    24. The next step of making an application to the National Court should only be made where there is clear and compelling evidence of neglect or refusal by the title holder to deliver up his title or has disappeared and cannot be found or contacted. This recourse should be invoked as the last resort. Such cautious approach in my view harmonises with the discretionary power conferred by s. 160 (2) on the Registrar to decide whether to seek appropriate remedy in the National Court. It is critically important to appreciate the legislative intent in s.160 (2), which is to give a title holder or a registered proprietor who holds an indefeasible title ample opportunity to be heard. This process protects the title holder from suffering possible penalties including six months gaol term under s.160 (5) if he did not comply with the Court orders.
    25. A “summons” issued by the Register under s.160 (1) may be treated as a “direction”. Whereas a “summons” issued by the National Court under s.160 (2) may be treated as an “order”. Thus, in this instance the letter by the second defendant demanding or directing the plaintiff to deliver up its title had been appropriately and properly treated as a “summons” for the purposes of s.160 (1).
    26. As to the word “may” in s. 160 (1), I accept Mr Molloy’s submission that it relates to the exercise of discretion by the Registrar whether to issue a summons for the title holder to deliver up his title or not. As to the word “may” in s. 161 (1), in my opinion it relates to the power the Registrar may exercise, viz; whether to cancel the title or to correct it, depending on the type of error or anomaly in the title or instrument after it is delivered up.
    27. Generally, once an error or an anomaly is raised against a title under s.160 (1) the matter then becomes subject to the processes set out under ss.160 and 161. This process begins with a summons being issued under s. 160 (1). It is obligatory for the Registrar to state clearly in the summons or direction, the reasons or grounds upon which the summons or direction is issued. This will inform the title holder why he is required to deliver up his title and safeguard his right to be head. Cancellation and or restoration of a title following a court order in a case would be subject to this process.
    28. In this case, when the second defendant did not receive a response to his letter of demand for the plaintiff to deliver up its title, he went ahead and cancelled the plaintiff’s title without giving the plaintiff an opportunity to be heard. The second defendant could have as I said earlier, instead of cancelling the title, made further inquiries as to the reasons for the plaintiff’s purported failure to deliver up its title.
    29. The second defendant could have applied to the National Court and sought orders for the plaintiff to show cause, if it was shown that the plaintiff neglected or refused to deliver up its title. Such a course would have given the plaintiff a further opportunity to be heard. The failure by the second defendant to avail such opportunity to the plaintiff was a fundamental breach of the plaintiff’s right to be heard as prescribed under s. 160 (1) and (2).
45. The views expressed in these cases concerning ss 160 and 161 of the Land Registration Act were affirmed by this Court in H.Q.H Enterprises Ltd v Wangbao Trading Ltd [2023] PGSC 69; SC2419.
    
46. The effect of these cases is that, in the circumstances of the present case, the Registrar should have applied to the National Court for the issuing of a summons for Kunjil to appear before that court and show cause why the instrument on which its registered interest was recorded should not be delivered up. The Registrar of Titles had no power to cancel Kunjil’s title to the leasehold interest.
    
47. For these reasons, the following orders should be made:
    
    1. The appeal be allowed,
    2. The orders made by the National Court on 31 March 2023 be set aside.
    3. In lieu thereof, it be ordered:
       
       1. The decision of the third defendant by his deputy, the second defendant to cancel the plaintiff’s leasehold interest in land described as Allotment 8 Section 25, Boroko, National Capital District (the land) be called up into the Court and quashed.
       2. The third defendant forthwith restore to the register of titles the registration of the plaintiff as the registered proprietor of the leasehold interest in the land, with effect from the date and time of the original registration of that interest and record the like registration on the duplicate certificate of title in respect of that leasehold interest.
       3. The sixth defendant, as the executor of the estate of the first defendant, deliver up any duplicate certificate of title to the third defendant for the purpose of the recording of the plaintiff’s registered interest by the third defendant.
       4. The defendants pay the plaintiff’s costs of and incidental to the action, including any reserved costs if any, to be taxed if not agreed.
          
    4. The respondents pay the appellant’s costs of and incidental to the appeal, including reserved costs if any, to be taxed if not agreed.

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Lawyer for the Appellant: Apo & Co
Lawyer for the former First Respondent and the Sixth Respondent: Jaminan & Partners Lawyers
Lawyer for the Second to Fifth Respondents: Solicitor General’s Office