SC2719
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA NOS 54 & 85 OF 2023

UNITED PNG HOLDINGS LIMITED
Appellant

V

TAMAKE HOLDINGS LIMITED
Respondent

WAIGANI: CANNINGS J, KANGWIA J, ELIAKIM J
24, 28 MARCH 2025 

LAND – STATE LEASES – competing titles – determination of registered proprietor – indefeasible title – allegation of fraud – whether party alleging fraud must plead and particularise fraud.

PRACTICE AND PROCEDURE – correction of clerical mistakes and errors in orders of National Court – National Court Rules Order 8 rule 59 – whether an error in description of land can be corrected under Order 8 rule 59 – whether necessary to show error or slip on the part of the Court – whether Order 8 rule 59 applies in the case of clerical mistakes or errors by lawyers or parties. 

The respondent commenced proceedings by originating summons in the National Court, claiming a declaration that it was the registered proprietor of a State Lease over government land and orders that the purported title held by the appellant over that land be surrendered and that the appellant give vacant possession to the respondent. After a trial, the National Court granted the relief sought by the respondent. After the order of the National Court was entered, the respondent moved a motion under Order 8 rule 59 of the National Court Rules for correction of errors in the volume and folio description of the land. The National Court upheld the motion and issued a second order, referring to the correct volume and folio description. The appellant appealed, in separate appeals, to the Supreme Court against both the original order and the second order. As to the original order the appellant argued that it was made in error as (a) there was evidence that the appellant had acquired a State lease over the land and become the registered proprietor before the respondent acquired its State lease over the same land, (b) the respondent did not plead any basis on which the appellant’s title ought to be set aside and did not allege or prove fraud was involved in the appellant’s acquisition of prior title, and (c) there was evidence that a third party which was registered proprietor of the State lease immediately before the respondent and which transferred the State lease to the respondent had obtained title by fraud. As to the second order the appellant argued that Order 8 rule 59 only applies in cases where the Court has made an error or slip or clerical mistake in the drafting of an order, not in cases such as the present where the error was made by the respondent and its lawyers. The error should have been discovered before the original order was made. An application for amendment of the originating summons should have been made. It was too late to correct the error after the original order was entered, as it was a final order and the National Court had no power to amend it.

Held:

(1)	Though the appellant had obtained title to the land before the respondent, the appellant’s title had been quashed by order of the National Court in separate proceedings. Though the appellant was not a party to those proceedings, it took no steps, having become aware of the order, to challenge it by appeal or review. It was bound by it.

(2)	The respondent was not obliged to plead any basis on which the  appellant’s title ought to be quashed or plead and prove fraud by the appellant as the appellant’s title was quashed by an order of the National Court.

(3)	Though there was some evidence of irregularity in the circumstances in which the third party had obtained title before transferring the State lease to the respondent, no fraud on the part of the respondent was alleged or proven. Furthermore, no kind of fraud whether constructive or actual was formally pleaded by the appellant by way of a cross-claim in the originating summons proceedings or by commencement by the appellant of separate proceedings. It is incumbent on a party who claims title should be set aside due to fraud, to plead and particularise fraud in a cross-claim or in separate proceedings.

(4)	No error was committed by the National Court in making the original order. 

(5)	Order 8 rule 59 of the National Court Rules allows the National Court to correct a clerical mistake or an error in an order. The mistake or error can be of the Court or a party. Here it was a mistake of the respondent in including an incorrect volume and folio reference in the originating summons. It was a simple error and no one including the appellant could reasonably have been confused by the terms of the original order, which also described the land by reference to its portion number, which was the correct number. There was no prejudice to the appellant by the Court’s correction of the volume and folio numbers.

(6)	No error was committed by the National Court in making the second order. 

(7)	Both appeals were wholly dismissed. 

Cases cited

Awaincorp Ltd v Kas [2015] 1 PNGLR 163
Kamen v Taka (2019) N8004
Kapiura Trading v Bullen (2012) N4303
Oliver Taste Ltd v Public Curator (2020) N8231
Paga No 36 Ltd v Eleadona (2018) SC1671
Pua v Magiten (2007) N2892
Rose v The State (2007) N3241
Wek v Sombol Trading Ltd (2016) SC1535
Yakasa v Piso [2014] 1 PNGLR 90

Counsel

A Manase & E Paul for the appellant
J J Lome for the respondent

1.      BY THE COURT: We have heard appeals by the appellant, United PNG Holdings Ltd, against two orders of the National Court made in the same proceedings, OS 582 of 2019, which concerned a State Lease over government land.

2.      In those originating summons proceedings, the respondent, Tamake Holdings Ltd, was plaintiff and the appellant was defendant. The respondent sought a declaration that it was the registered proprietor of the State Lease over Portion 2353, an area of 3.71 hectares of government land at Waigani in the National Capital District. The respondent also sought orders that the purported title held by the appellant over that land be surrendered and that the appellant give vacant possession to the respondent. 

3.     A trial was conducted and on 31 March 2023 the primary judge, Wurr AJ,  delivered an oral judgment, granting the relief sought by the respondent. 

4.      After the order of 31 March 2023 was entered, the respondent moved a motion under Order 8 rule 59 of the National Court Rules for correction of errors in the volume and folio description of the land. The National Court upheld the motion and on 31 May 2023 issued a second order, referring to the correct volume and folio description. 

5.      The appellant has appealed, in separate appeals, SCA 54 of 2023 and SCA 85 of 2023, against both the original order of the National Court and the second order, which gave the correct volume and folio description of the land. 

6.     As to the original order the appellant raises three grounds of appeal. It argues, in SCA 54 of 2023, that the order of 31 March 2023 was made in error as:

(a) there was evidence that the appellant had acquired a State lease over the land and become the registered proprietor before the respondent acquired its State lease over the same land;

(b) the respondent did not plead any basis on which the appellant’s title ought to be set aside and in particular did not allege or prove fraud was involved in the appellant’s acquisition of prior title; 

(c) there was evidence that a third party which was registered proprietor of the State lease immediately before the respondent and which transferred the State lease to the respondent had obtained title by fraud and that the respondent had been transferred the State lease contrary to a National Court order.

7.     As to the second order, of 31 May 2023, the appellant raises seven grounds of appeal, in SCA 85 of 2023, which can be reduced to three central arguments. It is argued that the primary judge erred in law, in that:

(a)	Order 8 rule 59 only applies in cases where the Court has made an error or slip or clerical mistake in the drafting of an order, not in cases such as the present where the error was made by the respondent and its lawyers who had inserted a wrong volume and folio description of the land in the originating summons;

(b)	the error should have been discovered before the original order was made and an application for amendment of the originating summons should have been made. It was too late to correct the error after the original order was entered, as it was a final order and the National Court had no power to amend it; 

(c)	the order of 31 May 2023 was contradictory in its terms.

SCA 54 OF 2023: APPEAL AGAINST THE ORIGINAL ORDER OF 31 MARCH 2023

(a) The argument that the National Court erred by ignoring the fact that the appellant had prior title 

8.     There was evidence that the appellant obtained title to Portion 2353 by being granted a State lease over it on 1 April 2009, which was before the respondent obtained its title over the same land on 5 February 2016. However, the granting of the State lease to the appellant was contentious. On 4 June 2010 the National Court (per Gavara-Nanu J) ordered that the decision to grant the State lease to the appellant was void and of no effect and was quashed. That order was made in OS (JR) 490 of 2009, judicial review proceedings commenced by Joint Missions Movement Ltd, which was interested in the land, against the Land Board, the Minister for Lands and Physical Planning, the Secretary for Lands and Physical Planning and the State. 

9.     Mr Manase, for the appellant, submitted that the appellant was not a party to those proceedings and could not be bound by the order quashing its title as the order was made contrary to the principles of natural justice. In support of the argument he relies on the decision of the Supreme Court in Yakasa v Piso [2014] 1 PNGLR 90.

10.       It is correct that the appellant was not a party to the proceedings but there was evidence before the National Court that it became aware of the order quashing its title at least by October 2012. It is significant that it did nothing to challenge the order. It was too late to appeal against it, but it could have applied to the Supreme Court for leave to review the order. It did not do that. 

11.       The decision in Yakasa v Piso is a statement of general principle only: a person adversely affected by a court order must be given the opportunity to be heard on the question of whether the order should be made. If they are not given that opportunity, for example, by not being a party to the proceedings that led to the order, they will not be afforded natural justice, the minimum requirements of which are, under s 59 of the Constitution, the duty to act fairly and, in principle, to be seen to act fairly. 

12.     However, such a person, having become .     aware of the order, must do something about it. They must take some active legal step to challenge the order. They cannot do nothing and regard themselves as not bound by the order. 

13.     The order of 4 June 2010 clearly quashed the appellant’s title. Though it is arguable that the order was made contrary to the principles of natural justice and was susceptible to being set aside, it has not been set aside. It must be given effect. This means that when the respondent obtained title on 5 February 2016, there was no conflicting title.

14.       No error was made by the primary judge in not considering the earlier title of the appellant.

(b) The argument that the National Court erred in ordering that the appellant’s title be cancelled as the respondent did not plead any proper basis on which the appellant’s title could be cancelled

15.     Mr Manase submitted that the respondent did not provide any basis in the originating summons for seeking an order that the appellant surrender its “purported title deed to Portion 2353” and that the Registrar of Tiles “cancel such title”. The respondent did not plead fraud against the appellant. Therefore the primary Judge erred in granting that relief.

16.     We reject that argument.  The respondent was not obliged to plead any basis on which the appellant’s title ought to be quashed. Nor was it obliged to prove fraud by the appellant in obtaining title. It was not obliged to prove that the appellant’s tile had been cancelled by the Registrar of Titles under the Land Registration Act. The status of the appellant’s title was resolved by the order of the National Court of 4 June 2010: the appellant’s title was void and of no effect and was quashed.

17.       The trial judge did not err in the manner contended for by the appellant. 

(c) The argument that the National Court erred by failing to find that the third party that transferred the State lease to the respondent had obtained title by fraud and that the respondent obtained title contrary to an order of the National Court

18.     The third party was Joint Missions Movement Ltd. It was granted the State lease over Portion 2353 on 17 August 2015. It transferred the State lease to the respondent on 5 February 2016.

19.       The appellant argues that the primary judge erred by failing to take account of the irregular circumstances in which Joint Missions Movement Ltd acquired title. 

20.     First there was evidence before the National Court that Joint Missions Movement Ltd was not a registered legal entity at the time it acquired title. Therefore it had no good title (Wek v Sombol Trading Ltd (2016) SC1535, Kapiura Trading v Bullen (2012) N4303). 

21.      Secondly there was an interim order of the National Court made on 27 October 2011 in OS (JR) 538 of 2009 that had been commenced by another party interested in obtaining the land, Giwi Properties Ltd. That order restrained all defendants including the Land Board and the Registrar of Titles from in any way dealing with the land known as Portion 2353, pending the determination of those proceedings. OS (JR) 538 of 2009 was not determined until 12 August 2016 when the proceedings were dismissed as an abuse of process. This meant that all dealings in the land before that date including the acquisition of title by Joint Missions Movement Ltd on 17 August 2015 and the transfer of the State lease to the respondent on 5 February 2016 were in breach of the order of 27 October 2011 and tainted by illegality and irregularity, amounting to constructive fraud.

22.     The appellant argued that there was fraud involved in the acquisition of title by Joint Missions Movement Ltd and it followed that the title obtained by the respondent was also necessarily affected by the fraud. 

23.     We are not persuaded by those arguments. While we agree that there is, because of the order of 27 October 2011, some evidence of irregularity in the circumstances in which Joint Missions Movement Ltd obtained title before transferring the State lease to the respondent, there is, apart from the argument that the State lease was transferred to the respondent contrary to that order, no evidence of fraud against the respondent. 

24.       The registered proprietor of a State lease has indefeasible title subject only the exceptions provided for by s 33 of the Land Registration Act, in particular in a case of fraud. Whether the fraud has to be actual fraud or constructive fraud, it has to be fraud in which the registered proprietor is implicated (Paga No 36 Ltd v Eleadona (2018) SC1671, Kamen v Taka (2019) N8004, Oliver Taste Ltd v Public Curator (2020) N8231). 

25.     Here there was no evidence implicating the respondent in the circumstances in which Joint Missions Movement Ltd obtained title, and only indirect evidence that the respondent was implicated in the arguable irregularity in it being transferred the State lease on a date that the order of 27 October 2011 was still active.

26.       Moreover, we agree with the trial judge that the argument that the respondent’s title was tainted by the circumstances in which Joint Missions Movement Ltd obtained title, was never formally and properly raised. It is incumbent on a party that asserts that a registered proprietor’s title is affected by fraud to take some formal legal step to challenge the title, for example by filing a cross-claim to an originating summons proceedings or by commencement of separate proceedings (Paga No 36 Ltd v Eleadona (2018) SC1671). And whatever is done, it must be done in a timely manner (Awaincorp Ltd v Kas [2015] 1 PNGLR 163).

27.       Here the appellant did not file a cross-claim and did not commence separate proceedings to challenge the respondent’s title, and only raised the issue of fraud in a trial in which it was the defendant, in 2022, six years after the transfer of the State lease, in 2016, to the respondent.  

28.        The trial judge did not err in the manner contended for by the appellant. 

SCA 85 OF 2023: APPEAL AGAINST THE SECOND ORDER OF 31 MAY 2023

29.      Order 8 rule 59 of the National Court Rules was relied on by the National Court as the jurisdictional basis for making the order of 31 May 2023, by which the order of 31 March 2023 was “corrected” to read that:

It is declared that the plaintiff [respondent] is the registered proprietor and indefeasible titleholder of the property described as Portion 2353, Milinch Granville, Fourmil Port Moresby, National Capital District, State lease volume 68, folio 16.

30.      The original order of 31 March 2023 was except for the volume and folio numbers (which were stated as volume 63, folio 18) in the same terms as the order of 31 May 2023.

31.       The appellant argues that the trial judge erred in three respects in making the order of 31 May 2023.

(a)	The argument that Order 8 rule 59 only applies to errors or mistakes made by the Court

32.        The appellant argues that Order 8 rule 59 only applies to errors or mistakes made by the Court, and the error in this case was that of the respondent and its lawyers, so Order 8 rule 59  could not be used to correct the order of 31 March 2023.

33.       It is a fact that the error in the volume and folio numbers was made by the respondent and its lawyers. The originating summons referred to volume 63, folio 18, and the Court, after the trial, made the order of 31 March 2023 in the terms sought in the originating summons.

34.      However, we are unable to agree with the appellant’s contention that Order 8 rule 59 is confined to mistakes and errors of the Court. It states:

(1)	Where there is a clerical mistake in a minute of a judgement or order, or an error in a minute of a judgement or order arising from an accidental slip or omission, the Court, on application by a party or of its own motion, may, at any time, correct the mistake or error.

(2)	Rules 56, 57 and 58 do not apply to a correction made under sub-rule (1).

35.     Rule 59(1) provides for correction of a mistake or error “where there is a clerical mistake in a minute of a judgement or order, or an error in a minute of a judgement or order arising from an accidental slip or omission”. The only precondition to correction of a clerical mistake or error is that it arises from an accidental slip or omission. It is not stated that the slip or omission must be that of the court. The words of rule 59(1) are wide enough to include slips or omissions of parties and lawyers.

36.       The appellant was unable to cite any authority in support of the proposition that Order 8 rule 59 is confined to slips and omissions by the court. The cases in which the rule has been invoked do not support that proposition (Pua v Magiten (2007) N2892, Rose v The State (2007) N3241). 

37.      Order 8 rule 59 of the National Court Rules permits the National Court to correct any clerical mistake or error in an order, whether the mistake is made by the court or a party. In this case, the error was made by the respondent, which included an incorrect volume and folio reference in the originating summons. This was a simple clerical mistake, and neither the appellant nor anyone else could reasonably have been confused by the terms of the original order, which also described the land by its correct portion number. The appellant suffered no prejudice from the court’s correction of the volume and folio numbers. The rule offers flexibility, allowing the court to rectify errors caused by a party or the court itself, provided the mistake is clerical or accidental and does not affect the substance of the judgment or order.

38.       The trial judge did not err by invoking Order 8 rule 59 to correct an error that had been made by the respondent and its lawyers.

(b)	The argument that it was too late to correct the error

39.     The appellant is correct in saying that the error should have been detected before the original order was made and an application for amendment of the originating summons should have been made. But that is really only stating the obvious. It can only be a lack of diligence on the part of the respondent’s lawyers to allow the error to be contained in the originating summons and to allow the error to occur in the original order of 31 March 2023. 

40.     We are unable to agree that it was too late to correct the error after the original order was entered. It was indeed a final order. However, there is no time constraint imposed by Order 8 rule 59. 

41.     We agree with the submission of Mr Lome for the respondent that the trial judge was cognisant of the inherent power of the court under s 155(4) of the Constitution to make an order that was “necessary to do justice in the circumstances of a particular case”. All that her Honour did in making the order of 31 May 2023 was to remove the potential for confusion or difficulty arising from the reference to  incorrect volume and folio numbers in the order of 31 March 2023.

42.      Her Honour remarked:

There will be a substantial miscarriage of justice in my view, if I do not correct this slip. Furthermore it will set the record straight and remove any ambiguity so that the plaintiff can enjoy the fruits of the judgment without any hindrance from the defendant. 

43.      We endorse the learned trial judge’s remarks. Her Honour took the correct approach. There was no error of law in the manner contended for. 

(c)	The argument that the order of 31 May 2023 was contradictory 

44.     The appellant argues that the trial judge erred in making an order that was a contradiction in terms. 

45.      On the one hand, order 2(a) states that “all reliefs sought in the originating summons are granted”. Part of the relief sought in the originating summons is a declaration that “the plaintiff [the respondent] is the registered proprietor and indefeasible titleholder of the property described as Portion 2353, Milinch Granville, Fourmil Port Moresby, National Capital District, State lease volume 63, folio 18”.   

46.      On the other hand, order 2(b) states that “it is declared that the plaintiff [the respondent] is the registered proprietor and indefeasible titleholder of the property described as Portion 2353, Milinch Granville, Fourmil Port Moresby, National Capital District, State lease volume 68, folio 16”.

47.     We appreciate the point that literally the order of 31 May 2023 is contradictory. We agree that in expressing the order in those terms, the trial judge may have erred. 

48.     However, we do not agree that it was a significant error or that it needed to be corrected or that it made the order unenforceable or difficult to understand. No reasonable person reading and interpreting the order could be confused as to the meaning and effect of the order or the land to which it related.

CONCLUSION 

49.      We will dismiss both appeals. Costs will follow the event.

ORDER

(1)	The appeals are dismissed.

(2)	The orders of the National Court are affirmed.

(3)	The appellant shall pay the respondent’s costs of both appeals on a party-party basis, which shall, if not agreed, be taxed. 
__________________________________________________________________
Lawyers for the appellant:	Manase & Co Lawyers 
Lawyers for the respondent: 	Jeffersons Lawyers