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Tzen Plantation Ltd v Mukurramainga Land Group [2025] PGSC 50; SC2746 (27 June 2025)

SC2746

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCM NO. 46 OF 2024 (IECMS)

BETWEEN:
TZEN PLANTATION LIMITED
First Appellant

PAUL TUNIA & GEORGE TUNIA
Second Appellant

AND:
MUKURRAMAINGA LAND GROUP
First Respondent

HENRY WASA in his capacity as REGISTRAR OF TITLES, DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Second Respondent

KUTT PAONGA in his capacity as THE ACTING COMMISIONER OF LAND TITLES COMMISSION
Third Respondent

PEPI KIMAS in his capacity as SECRETARY, DEPARTMENT OF LANDS AND PHYSICAL PLANNING
Fourth Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

WAIGANI: COLLIER J, CARMODY J, CROWLEY J
27 JUNE 2025

REAL PROPERTY – indefeasibility of title – exceptions to indefeasibility under s 33 of Land Registration Act 1981 – fraud means actual fraud – Land Titles Commission – procedure for making conversion orders under Land (Tenure Conversation) Act 1963 – whether irregularities in procedure for making conversion orders can displace indefeasible title

PRACTICE AND PROCEDURE – pleadings – allegations of fraud must be pleaded – National Court has no jurisdiction to hear and determine customary land disputes

The appellants are the registered proprietors of land described as Portion 4182, Milinch Kokopo, Fourmil Rabaul contained in state lease being Volume 35, Folio 05 by way of a conversion order made by the Land Titles Commission on 30 April 2009. The respondents brought proceedings in the National Court to seek judicial review of the conversion order made by the Land Titles Commission claiming that the proper procedure under the Land (Tenure Conversion) Act 1963 had not been followed. The primary Judge found that the proper procedure had not been followed and remitted the matter to the Land Titles Commission for rehearing. The primary Judge also made a determination that the land in dispute was a customary land.

HELD

Appeal allowed with costs ordered against the first respondent. The appellants have indefeasible title by way of the conversion order. Fraud was not pleaded by the respondents. In any event, the primary Judge erred in making a determination that the land in dispute was customary land when the National Court has no jurisdiction to hear and determine customary land disputes.

Cases cited

Pacific Network Services Ltd v Sun Pacific Investments Ltd [2025] PGSC 28; SC2717
Helai v Samson [2024] SC2625
H.Q.H Enterprises Ltd v Wangbao Trading Ltd [2023] SC2419
Kimas v Oala [2015] SC1475
William Maki v Michael Pundia and PNG Motors [1993] PNGLR 337
Mudge v The Secretary for Lands [1985] PNGLR 387

Counsel

Mr I Shepherd for the appellants
Mr M Kuma for the first respondent
Ms B Kulumbu for the second to fifth respondents

REASONS FOR JUDGMENT

1. BY THE COURT: Before the Court is a Notice of Motion whereby the appellants appeal the whole of the judgment of the National Court of Justice in proceedings OS (JR) No. 57 of 2019 given on 28 September 2024. Prior to turning to the grounds of appeal before the Court, it is useful to note the background facts, including the findings of the primary Judge the subject of this appeal.

BACKGROUND

2. Some uncontentious background facts were set out in an affidavit of Mr George Tunia sworn 23 September 2019. Mr George Tunia is one of the second appellants. In that affidavit, Mr George Tunia relevantly deposed:
   

• Mr Paul Tunia was the late father of Mr George Tunia. Mr Paul Tunia had passed away on 25 January 2019.
• Mr Paul Tunia and Mr George Tunia were joint tenants of the land described as Portion 4182, Milinch Kokopo, Fourmil Rabaul contained in state lease being Volume 35, Folio 05. (It is convenient to refer to this property as “the Land” for the purposes of this judgment).
• The Land was part of a big parcel of land commonly referred to as Matanaoinapidik. There were five other portions of land in Matanaoinapidik.
• The six distinct portions in the Land were surveyed and the map as registered with the Department of Lands & Physical Planning on 11 August 2005.
• Mr Paul Tunia and Mr George Tunia had been living on the Land at a time when the Catholic Church claimed ownership of it. There was litigation in the Kokopo District Court between the Catholic Church and Mr Paul Tunia to evict Mr Paul Tunia. The District Court found, inter alia, that the Land was not customary land, but was alienated State land, and neither the Catholic Church nor Mr Paul Tunia had any ownership of it.
• Subsequently, Mr Paul Tunia took formal steps to apply for the title to the Land. The application dated 10 July 2006 was commenced under s 7 of the Land (Tenure Conversion) Act 1963.
• Relevantly the application to the Land Titles Commission asserted that Mr Paul Tunia and Mr George Tunia were the applicants, that the land known as “Matanaoinpidik” being Portion 4182 (Native Reserve) Milinch of Kokopo was native land.
• By letter dated 3 April 2007 the Land Titles Commission wrote to the second appellant and stated that the application was defective because it had not stated the proposed use of the Land.
• On 30 April 2009 the Land Titles Commission made a Conversion Order under the Land (Tenure Conversion) Act 1963 in the following terms:

...that Paul Tunia, George Tunia all of Takubar village, Kokopo, East New Britain Province are the Owners as Tenants in Common in equal and undivided shares of an estate in fee simple in respect of all that piece of land known as Matanaoinpidik being Portion 4182, Milinch of Kokopo, Fourmil of Rabaul having an area of 1.56 hectares, as shown delineated and edged red on the Conversion plan annexed hereto and marked with a letter “A” subject to the encumbrances (if any) notified hereunder.

• Three limitations were listed as encumbrances on the Land in the terms of the Conversion Order.
• Following the Conversion Order Mr Paul Tunia and Mr George Tunia settled on the Land and made improvements. Mr Paul Tunia then entered into a Lease Agreement with Tzen Niugini Limited to set up their office complex and accommodation facilities for their employees.
• In 2013 judicial review proceedings were filed by Dinah Uranga for an on behalf of Bitavuvur Clan of Takubar Village, under proceedings styled OS No 467 of 2013 in connection with the Land. Ms Uranga claimed that proper processes had not been followed by the second appellant under the Land (Tenure Conversion) Act 1963. Those proceedings were referred for mediation, and a Deed of Release and Settlement executed between those parties to conclude the matter. On 18 November 2014 Acting Justice Oli made the following dispositive orders in OS (JR) No 467 of 2013:
  1. The parties in this proceeding shall comply with all the terms of the Deed of Release and Settlement made on 9 November 2014.
  2. The issuance of the Certificate of Title to the First Defendants for Volume 35 Folio 05 and the subsequent title issued by the Registrar of Title in respect of Portion 4182 containing an area of 1.557 hectares (now subdivided into Portions 5134 and 5135 respectively containing 1.07 hectares and 0.487 hectares as more particularly described in registered survey plan catalogue no 19/1964), Milinch of Kokopo, Fourmil of Rabaul, East New Britain Province is proper.
  3. The Issuance of Title to Tzen Plantation Limited of Portion 5134, Milinch of Kokopo, Fourmil of Rabaul, East New Britain Province containing 1.07 hectares is proper.
  4. The Second Defendants shall pay for the mediation process ordered by the Court on 20 October 2014.
  5. The proceeding is discontinued.
  6. ...
  7. ...

3. Mr George Tunia deposed that none of the events involving the application for the Conversion Order were secret, and that the Mukurramainga Land Group Incorporated (Mukurramainga) had failed to file any documents showing any steps to assert their claim in the Land. He deposed that his father Mr Paul Tunia was from the Mukuramainga of Kokopo and was a clan elder.
   
4. Mr George Tunia further deposed that at all times when he and his father were seeking ownership of the Land, no other clan members from Mukuramainga clan were interested in asserting an interest in the Land. He stated that at some point Mr Paul Tunia and Mr George Tunia asserted that if a conversion order was made, they proposed to use the Land for the purpose of resort, guesthouses and to build residences for rent/lease.
   
5. In the National Court, a Statement of Agreed and Disputed Facts and Issues for Trial was filed by the parties on 18 December 2019 which set out the following:
   

AGREED FACTS

1. The Plaintiff (which represents the Mukuramaingna clan) is legitimate body incorporated under the Land Groups Incorporation (Amended) Act 2009 to bring these proceedings for and on behalf of the Mukuramaingna clan.
2. The First Defendants applied under the Land Tenure (Conversion) Act to Land Titles Commission (LTC) for conversion of Matanaoinapidik (Native Reserve being Portion 4182).
3. On 14 July 2009, the Second Defendant granted title of Matanaoinapidik (Native Reserve being Portion 4182) to the First Defendants as tenants in common.

DISPUTED FACTS

4. The First Defendants are not members of the Mukuramaingna clan.
5. The Mukuramaingna clan is not the customary land owners of the land known and referred to Matanaoinapidik (Native Reserve being Portion 4182).
6. Matanaoinapidik (Native Reserve being Portion 4182) is not customary land.
7. The First Defendants obtained title to Matanaoinapidik (Native Reserve being Portion 4182) without (following) proper and legal process set out under the enabling legislations (Land Tenure (Conversion) Act, Land Titles Commission Act, Land Act and Land Registration Act).
8. The First Defendants’ application for conversion is still pending to be determined by LTC.
9. If there was a LTC determination (which Plaintiff totally denies and disputes), LTC never published:

(i) notice of such hearing;
(ii) location or place of such hearing;
(iii) requests for any objection.

10. The purported decision conversion order dated 30 April 2009 (by Elias Jenssen Jey, Commissioner of LTC) is not the decision of LTC.
11. The Second Defendant’s decision to grant title of Matanaoinapidik (Native Reserve being Portion 4182) to the First Defendant dated 14 July 2009 is illegal.
12. The First Defendant’s title to Matanaoinapidik Native Reserve being Portion 4182 is questionable.
13. The First Defendants subdivided Portion 4182 (a Native Reserve) to Portions 5134 and 5135 after obtaining title to Portion 4182 is questionable.
14. The First Defendants sold Portion 5134 to Tzen Plantations Pty Ltd is questionable.

ISSUES FOR TRIAL

15. Whether Portion 4182 is a customary land?
16. Whether the First Defendants applied to LTC for conversion of Matanaoinapidik (Native Reserve) being Portion 4182?
17. Whether the LTC determined the First Defendants’ application for conversion of Matanaoinapidik (Native Reserve) being Portion 4182?
18. (If so) whether the LRC promptly published:

(i) amble [sic] notices of hearing;
(ii) name of place and date of hearing;
(iii) names of the Commissioners who would (sit to) determine the First Defendants’ Application (hearing);
(iv) any requests for objections (of the application for conversion)?

19. Whether the (purported) decision conversion order dated 30 April 2009 ((by Elias Jenssen Jey, Commissioner of LTC) is the decision of LTC?
20. Whether the Second Defendant’s decision to grant title to the First Defendants dated 14 July 2009 is legal?
6. We note that the first appellant, Tzen Plantation Limited (Tzen), was not originally a party to the proceedings in the National Court. However on 10 March 2020 Tzen filed a Notice of Motion seeking orders that it be granted leave to join the proceedings in the National Court as the sixth defendant. That Notice of Motion was supported by an affidavit of its chief executive officer, Mr Eng Kwee Tan, sworn 10 March 2020, in which Mr Eng deposed that Tzen had an interest in the proceedings because it had entered into a lease agreement with Mr Paul Tunia and Mr George Tunia, who are now the second appellant. Leave for Tzen to join the proceedings was granted on 6 August 2020.
   

DECISION OF THE PRIMARY JUDGE

7. In the National Court the current first respondent, Mukurramainga relied on an Originating Summons (Judicial Review) filed on 5 February 2019 in which it materially sought the following relief:
   

(1) Leave to apply for judicial review of the decision of the Second and Third Defendants to grant title to the First Defendants over a Native Title Reserve at Takubar commonly known as Matanaoinapidik Native Reserve or formerly referred to as Portion 4182, dated 14 July 2009.
(2) An order in the nature of certiorari to be used to remove into this court and quash the decision of the Second and Third Defendants in granting title of Portion 4182 to the First Defendants, dated 14 July 2009.
(3) Costs be in the cause.

8. The grounds of review on which the first respondent relied were set out in a Statement filed pursuant to Order 16 Rule 3(2)(a) of the National Court Rules 1983 on 5 February 2019. In summary, those grounds were:

• The Registrar of Titles and the Minister erred in law, in particular breach of set criteria to convert native reserves into individual titles, because the Land Titles Commission had not determined the application by Mr Paul Tunia and Mr George Tunia under s 7 of the Land (Tenure Conversion) Act 1963, and accordingly ss 8, 9 and 10 of that Act had not been complied with. No title could be granted without compliance with those sections.
• Similarly, the Registrar of Titles and the Minister acted ultra vires their powers and functions in granting the land to Mr Paul Tunia and Mr George Tunia, in that they did not have the power to dispose of customary land as they did to Mr Paul Tunia and Mr George Tunia.
• The decision of the Registrar of Titles and the Minister was unreasonable.
• The Registrar of Titles and the Minister denied Mukurramainga natural justice, in that:
  • Mukurramainga was denied the right to be heard at the Land Titles Commission;
  • If there was a hearing by the Land Titles Commission, there was no publication of it in favour of Mr Paul Tunia and Mr George Tunia;
  • Mukurramainga was denied the right to object in accordance with the Land (Tenure Conversion) Act 1963;
  • Mr Paul Tunia and Mr George Tunia were not customary land owners of the Land.

9. Evidence to the effect of the assertions of Mukurramainga as set out in its statement was the subject of an affidavit of Mr Leo Marko, the Chairman of Mukurramainga, sworn 28 January 2019.
   
10. When the matter came before the primary Judge his Honour delivered an ex tempore decision. After setting out material background, his Honour continued:
    

Therefore, the court is being asked to look at the manner or look at the role of the court. The role of the court in such a case and judicial review case is basically by supervising or observing the manner in which the process had taken place. And not necessarily looking at the matter as an appellate authority but rather an oversight of the process in which the decision had been conducted. This follows the case authority which is now frequently cited by the court in the case of Kekedo v Burns Philip (PNG) Limited [1988-89] PNGLR at page 122.
The exercise of a supervisory jurisdiction is confined to matters raised and those matters that I have just alluded to are matters which the plaintiffs have submitted were some of the aspects of the process that were not properly complied with when the decision was made to grant a title to the first defendants. And that is the main grievance of the plaintiffs that given such extenuating circumstances leading up to the registration of the title to the Registrar of Titles’ office, all those decisions that were invoked could not be sustained because of the fact that they did not follow the sequence in which the process requires for each of those matters to occur.
And therefore once a title has been registered without the necessary process being undertaken in terms of converting the tenure of that piece of land to a status that can be leased to an individual as a lease is then against the law and it is improper. And the plaintiff before this court has submitted that everything that has been done without the approval under section 7 of the Land (Tenure Conversion) Act then the land is not converted to the status where it can then be issued with the title to a person, to an individual. And therefore the issuance of that title and its registration was wrong lawfully in terms of the legal requirements and therefore it cannot – it should not be accepted as that.
The plaintiff also raised the issue of natural justice and its grounds were that when granting the title over the land subject of the proceedings... the second and third defendants denied the plaintiff right to natural justice and procedural fairness. The plaintiff says that it was denied the right to be heard at the Land Tenure Conversion hearing as the first defendant’s application was still pending before the Land Titles Commission. And according to the plaintiffs, there was not hearing at all.
On the other hand, there was claim by the defendants that there was some hearing that was conducted by the Commissioners of the Land Title Commission. However there is some dispute as to whether there was actually any hearing and whether those hearings were conducted by the appropriate authorities. And I have seen various affidavits and submissions by both sides and I think it comes down to the commission that was claimed to have been presided over the hearing with respect to this case, respect to this piece of land. And a person by the name of Mr...
...Jenssen. And Jennsen, it has been found that this particular person does not exist as a Commissioner of the Land Titles Commission. And in fact Mr Kutt Paonga of the National Land Titles Commission, the fourth defendant, I think he clearly states that this person is not a lawyer or is not a commissioner of the commission at that time and therefore Elisa Jennsen Jey, that the decision of the conversion was presided over by this person, Elisa Jennsen Jey, and that he made a conversion order on 30 April 2009 in relation to a decision of this conversion of this piece of land from a native reserve land to a State land.
And this Elisa Jennsen Jey, according to the records was never a Commissioner of the Land Titles Commission according to the plaintiffs and therefore there was no hearing. And also, that he cannot claim to have made a decision on the conversion of this customary land into a State Lease.
And although it was being claimed that it was through this person that conducted the hearing, as I said, even Kutt Paonga himself, the Commissioner Land title could not confirm and would not acknowledge the existence of this officer as a Commissioner of Land Title. And that raises a lot of questions as to the claim that there was actually hearing that was conducted and that the plaintiff even though they were not present, this hearing was conducted by somebody that was – had the legal authority to conduct such hearing.
Since there are no records of the proceedings except a decision being issued that the proceeding was heard and the application was successful and like that the title was issued to the first defendants, there are no records of the proceedings and therefore there are some questions as to whether there was a proceeding at all. The plaintiffs have submitted that there was no proceedings. There could not have been a proceeding since there is no record, and they were not aware and they were not given the opportunity to be heard and for all those reasons, the plaintiff were deprived of the right to be heard and to be given a fair treatment.
All right, the first to the sixth defendants have submitted their claim that they have complied with sections 10 and 12 of the Land (Tenure Conversion) Act 1963 and that the land has now been converted and the title to the land has been issued to the first defendant and that this should be accepted as the conclusive evidence provided that there has been a hearing and the hearing has been given in terms of the award of the – or the grant of the application of the title to the first defendants. However, having read the plaintiff’s affidavit and the list of persons that have also provided the affidavit in support of the plaintiffs’ claim, this court has given a lot of serious thought to the claim by the defendants.
And the court although there are submissions and affidavits from a lot of persons that were involved from the Lands Department to claim that there was a hearing and the conversion was done and that even though the plaintiff has not pleaded any fraud, I think it is very clear that there has been a strong irregularity in the sense that somebody unknown from somewhere had conducted a hearing which the Land Titles Commission does not even know.
The court having noted the grounds that were raised by the complainant or the plaintiffs and the response by the defendants, the court has decided to accept the submissions by the plaintiffs and the court has therefore in the end going through all the matters and submissions of both parties and in the end the court has decided to uphold the grounds and the – from the statement by the plaintiffs and the court has also having considered everything, the court has decided to uphold the plaintiff’s submissions and has decided to issue the following orders, making the following findings and orders or following relieves as sought by the plaintiffs.
The court has decided to order : (1) That in terms of the order for the decision of the second defendant to grant title to the first defendants over the piece of land called Matanaoinapidik Nature Reserve land portion 4152 and grant this title to the first defendant on 14 July 2019. The court has ordered that this decision by the second defendant is to be quashed by the order of this court.
And secondly is that this court declares that the grant of the title to the first defendants on 14 July 2019 by the second defendant over this piece of land Matanaoinapidik Nature Reserve portion 4182 is null and void and of no further effects. Thirdly, the court makes a declaration that the land referred to as the Matanaoinapidik Nature Reserve land portion 4182 is a customary land. Number (4) The court orders in the nature of mandamus directing the Land Titles Commission to hear and determine the application by the first defendants under section 7 of the Land (Tenure Conversion) Act which was filed on 10 July 2006 and has been left without him being processed and heard and determined. So, by the order of this court, the Land Titles Commission is directed to hear and determine this application which was filed on 10 July 2006.
The court also orders that the first defendants’ application under section 7 of the Land (Tenure Conversion) Act filed on 10 July 2006 for conversion of the title to them over the Matanaoinapidik Native Reserve in portion 4182 is to be processed and to be heard and determined. Number (6) The court also declares that the Land Titles Commission has not made a determination of that application by the first defendants under section 7 of the Land (Tenure Conversion) Act. The court has declared that there has not been any hearing and determination of that application by the first defendants.
The court also declares that the second defendants did not have any power under the law, particularly the land Act [1996] and that under the Land (Tenure Conversion) Act to grant title to the customary land without due process undertaken by the Land Titles Commission. And the due process as stated would be for the application to be listed for hearing for the application then to be held at the public hearing, for all the parties to be notified in advance, sufficient adequate time and opportunity to be given to all and everyone interested to participate in this public hearing before a title can be granted to a customary land. And in this case, that has not been done.
Finally, the court will order costs to be paid to the plaintiffs by the defendants and that this is to be abridged to the date of the decision which is today and that if it is not agreed, to be taxed....

APPEAL

11. In the Notice of Motion filed on 5 November 2024 the appellants appealed the entirety of the decision of the primary Judge. The appellants relied on 13 grounds of appeal. In summary, those grounds of appeal were:
    

• The primary Judge erred in finding that the Land was customary land, when the National Court had no jurisdiction to make that determination, and where such a determination could only be made in accordance with the provisions of the Land Disputes Settlement Act or the Land Titles Commission Act. (ground of appeal 1)
• There was evidence that application by Mr Paul Tunia and Mr George Tunia under the Land (Tenure Conversion) Act 1963 dated 10 July 2006 was heard on 20 April 2009 by Elias Jensen Jey, a Deputy Commissioner of the Land Titles Commission. (grounds of appeal 2 and 12)
• Mr Paul Tunia and Mr George Tunia were the registered proprietors of Portion 4182, and pursuant to s 33 (1) of the Land Registration Act 1981 they held the land free from all encumbrances except fraud – and fraud was not alleged. Further, fresh registered titles had been issued, including to Tzen. (grounds of appeal 3, 5, 7, 8, 9, 10 and 11)
• The application for the Conversion Order had already been heard and determined, such that the Registrar of Titles was required to grant the title. (grounds of appeal 4 and 6)
• The primary Judge failed to take into account the findings of Acting Justice Oli in National Court proceedings OS (JR) No 467 of 2013. (ground of appeal 13)

CONSIDERATION

12. At the hearing much of the argument turned on two issues. Those issues were:
    

(1) Predominately, whether the title of Mr Paul Tunia and Mr George Tunia, and Tzen, to their respective portions of the Land, was subject to principles of indefeasibility, or whether the title was affected by alleged irregularities in the process leading to the issue of title; and
(2) Whether the finding of the primary Judge that the Land was customary land was within the jurisdiction of the National Court.

13. It is convenient to consider these issues in turn.

Process and indefeasibility

14. In ss 7, 8, 9 and 10 of the Land (Tenure Conversion) Act 1963 the process for applying for registration and the making of conversion orders is prescribed. In particular, the processes in ss 8 and 9 are mandatory requirements for the Land Titles Commission when dealing with relevant applications for conversion orders. Most relevantly for the purposes of issues of indefeasibility, s 11 of the Land (Tenure Conversion) Act 1963 provides:
    

FORM AND CONTENTS OF CONVERSION ORDER.
(1) A conversion order shall direct the Registrar of Titles–

(a) to register in the Register established under the Land Registration Act 1981 the applicant or another person as the owner of an estate in fee simple in some or all of the land the subject of the application; and
(b) to enter upon the relevant title registered under Paragraph (a) any lease, encumbrance or other estate or interest less than an estate in fee simple in favour of the applicant or some other person which in the opinion of the Commission should be so entered; and
(c)[Repealed.]
(d) to take such further or other action in the premises as to the Commission seems just and proper.

(2) On a title registered under Subsection (1)(a), the Registrar of Titles shall endorse a statement that the title is subject to the conditions and restrictions imposed by this Act.

15. It is not in dispute in this case that on 14 July 2009 the Registrar of Titles registered Mr Paul Tunia and Mr George Tunia as tenants in common in equal and undivided shares of an estate in fee simple in relation to land described as Vol 35 Folio 05, formerly known formally as the Land. It is also clear from material before the Court that this allotment was subsequently replaced and subdivided in the Register, including by the issue of a Substitute Lease under Section 22 of the Land (Ownership of Freeholds) Act 1976 to Tzen described as being in respect of Portion Allotment 5134 and subject to the same encumbrances as Vol 35 Folio 05. We also note that the balance of the Land became another Substitute Lease under Section 22 of the Land (Ownership of Freeholds) Act 1976 issued to Mr Paul Tunia and Mr George Tunia, described as Portion Allotment 5135.
    
16. In argument before the Supreme Court the registered nature of the interests of the appellants was not in dispute. The primary issue in dispute was whether those interests could be set aside as a result of alleged irregularities in the process whereby the Land Titles Commission made the Conversion Order in respect of the Land in favour of Mr Paul Tunia and Mr George Tunia.
17. As we noted earlier in this judgment, the appellants in their grounds of appeal 3, 5, 7, 8, 9, 10 and 11 claimed that their registered titles were indefeasible in the absence of fraud.
    
18. Both Counsel appearing for the respondents submitted strongly that there were irregularities in that process, and that such irregularities had been recognised by the primary Judge including in respect of the hearing of the application for conversion prescribed under the Land (Tenure Conversion) Act 1963 and the identity of the Commissioner who made the Conversion Order. Further, when the Court raised with Counsel the question of indefeasibility of the titles of the appellants, Counsel for the respondents both urged the Supreme Court to embrace the concept of constructive fraud as a basis on which those titles could be rendered void.
    
19. In our view the grounds of appeal 3, 5, 7, 8, 9, 10 and 11 are substantiated. The arguments of the respondents opposing those grounds lack merit. We formed this view for the following reasons.
    
20. First, s 11(1)(a) of the Land (Tenure Conversion) Act 1963 makes plain that a conversion order as in this case is entered into the Land Titles Register, which Register is established under the Land Registration Act 1981. Critically, s 33 of the Land Registration Act 1981 provides:
    

PROTECTION OF REGISTERED PROPRIETOR.
(1) The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except–

(a) in the case of fraud; and
(b) the encumbrances notified by entry or memorial on the relevant folio of the Register; and
(c) the estate or interest of a proprietor claiming the same land under a prior instrument of title; and
(d) in case of the omission or misdescription of any right-of-way or other easement created in or existing on the same land; and
(e) in case of the wrong description of the land or of its boundaries; and
(f) as to a tenancy from year to year or for a term not exceeding three years created either before or after the issue of the instrument of title of the registered proprietor; and
(g) as provided in Section 28; and
(h) a lease, licence or other authority granted by the Head of State or a Minister and in respect of which no provision for registration is made; and
(i) any unpaid rates, taxes, or other money which, without reference to registration under this Act, are expressly declared by a law to be a charge on land in favour of the State or of a Department or officer of the State or of a public corporate body.

(2) The operation of Subsection (1) is not affected by the existence in any other person of an estate or interest, whether derived by grant from the State or otherwise, which, but for this Act, might be held to be paramount or to have priority.
(emphasis added)

21. In the present case the only exception to indefeasibility of the appellants’ title which was raised by the respondents before us was fraud.
    
22. Second, fraud was not pleaded before the primary Judge as an exception to the indefeasibility of the appellants’ title. Recently in Pacific Network Services Ltd v Sun Pacific Investments Ltd [2025] PGSC 28; SC2717 the Supreme Court reiterated the general rule of pleading relevant to claims of fraud, namely as follows:
    

It is well settled that “fraud is a very serious allegation, and the courts have required strict adherence to requirements for pleadings in such cases. Courts have never allowed general allegations of fraud . Courts have required that a person pleading fraud should set out facts, matters, and circumstances relied on to show that the party charged had or was actuated by a fraudulent intention. The acts alleged to be fraudulent must be stated fully and precisely with full particulars . It is not enough just to say that the person lied or swore a false affidavit. The facts, matters and circumstances which make such statements lies must be particularized ”: William Maki -v- Michael Pundia and PNG Motors [1993] PNGLR 337 at 338-339 and the cases applying.

23. The case to which the Supreme Court in Pacific Network Services referred, namely William Maki v Michael Pundia and PNG Motors [1993] PNGLR 337 is of particular relevance in this case. In Maki Woods J found as follows:

The subject matter of this writ of summons is an area of land known as Ngents, situated near Mount Hagen and fronting on the Highlands Highway. The plaintiffs are claiming to be owners of this land by right of custom and are alleging that the first defendant unlawfully occupied the land and fraudulently obtained title to the land under the Land (Tenure Conversion) Act by fraudulently claiming he had proper and legal title to the said land. The plaintiffs further claim that, having obtained title to the land, the first defendant leased the land to the second defendant.
At this stage, I am not sure what the claim against the second defendant really is, as there is no wrong specifically alleged against him. However, for the purpose of the motion that is before me, I do not have to consider the nature of the claim against the second defendant, as the motion is against the statement of claim generally.
The summons claims a right to land; but as the first defendant clearly has a certificate of title to the subject land, the plaintiff has to claim fraud on the part of the first defendant to try and overturn that certificate of title. The defendants have asked the Court to stay the proceedings generally, or to dismiss the proceedings, or to strike out the statement of claim.
The first argument by the defendants is that the plaintiffs' writ is an abuse of process, in that they are seeking the same, or substantially similar, relief as they had sought and failed to obtain in the District Court. It appears that there have been proceedings in the District Court over the subject land, and the District Court in July ordered that the plaintiffs are restrained from interfering with the defendants' use and occupation of the land. The defendants say that the plaintiffs should have appealed that order of the District Court, not taken fresh proceedings. However, it is obvious that there was no argument that the plaintiffs could have used on any appeal as, in appealing, they would have been challenging the title of the first defendant to the land. That cannot be done in the District Court, as the District Court has no jurisdiction to decide questions of title to land. So, if the plaintiffs wanted to challenge the title to the land, the only jurisdiction is in the National Court.
The defendants further say that the pleadings of the plaintiffs are deficient and should be struck out. This is a claim challenging the grant of a certificate of title. The claim is that the certificate of title was obtained by fraud. National Court Rules O 8 r 30 makes particular reference to pleadings of fraud: "A party pleading shall give particulars of any fraud, misrepresentation, breach of trust, wilful default or undue influence on which he relies".
An allegation of fraud is a very serious allegation, and the courts have required strict adherence to requirements for pleadings in such cases. Courts have never allowed general allegations of fraud. Courts have required that a person pleading fraud should set out the facts, matters, and circumstances relied on to show that the party charged had or was actuated by a fraudulent intention. The acts alleged to be fraudulent must be stated fully and precisely with full particulars. It is not enough just to say that the person lied or swore a false affidavit. The facts, matters and circumstances which make such statements lies must be particularised. Also, this being a challenge to the procedures under the Land (Tenure Conversion) Act, the fault or fraud in those procedures should be particularised. In such a challenge to a certificate of title to land, the court has traditionally insisted on strict rules for the protection of persons who are in possession of land against attacks from persons who, hoping to find some blot on the title, bring actions against them without any reasonable cause. I am not saying that this action may be being brought without reasonable cause, but if these rules which protect persons in possession of land from being wrongfully and improperly attacked work hardship on the plaintiffs, that is part of the general purpose of protecting property and persons from being improperly vexed. Surely, the rule is no such hardship. If the plaintiffs know anything, then they can and should plead it.
The amended statement of claim clearly does not plead any facts, matters or circumstances. It merely asserts that the first defendant fraudulently obtained title, without giving any details. However, the plaintiffs have filed a further document called particulars of fraud. Clauses 1 and 2 of those particulars take the allegation of fraud no further, merely alleging that the first defendant told lies without giving the facts and circumstances which may show that he has told lies. Clause 3 refers to the first defendant falsely procuring a statutory declaration. This is a serious allegation, but there are no facts supporting how, or when, or under what circumstances this was done and how this circumvented the procedures under the act under which the certificate of title was granted. An allegation of fraud like this requires more detail. Clause 4, in effect, merely states that the defendant told a lie. It provides no facts to support that allegation. Clause 5 does not really allege anything.
I am satisfied that in this allegation of fraud in the issue of a certificate of title following procedures laid down in an act are not sufficiently particularised to satisfy the requirements of O 8 r 30. I order that the statement of claim and the particulars of fraud pleaded separately be struck out.
(emphasis added)

24. The facts of Maki are strikingly similar to those in the present case. For similar reasons to those found by his Honour Woods J in Maki, namely that fraud was not pleaded, there was no basis on which the primary Judge in the present case could have ruled that the title of the appellants to the Land, or their portions of the Land, could be defeated, irrespective of any claimed irregularities.
    
25. We note, of course, in any event, that the primary Judge in this case specifically found that there was no fraud on the part of the appellants in obtaining their respective titles. In such a case, like in Maki, the titles of the appellants were indefeasible.
    
26. The third reason that we consider that the arguments of the respondents lack merit is because we reject their submission that the Supreme Court should allow arguments referable to so-called “constructive fraud” as a basis on which indefeasibility of a registered interest in land could be defeated. Until recently there appeared to be a divergence of opinion in the Supreme Court as to whether “fraud” for the purposes of s 33(1)(a) of the Land Registration Act 1981 could be either actual or constructive fraud. More recently however in Helai v Samson [2024] SC2625 the Supreme Court reviewed historical authorities underpinning the principles of indefeasibility and observed:
    
    13. It was always necessary for Raka Helai to allege and prove fraud. That is because fraud was the only applicable exception to the indefeasibility of title acquired by Rachel Avuti Manuet and Stanley Maniet upon the registration of the new State lease in their names: s 33(1)(a), Land Registration Act 1981. There is a considerable and consistent line of overseas authority at ultimate appellate level, taken up in Mudge v The Secretary for Lands [1985] PNGLR 387, that the fraud exception to indefeasibility means actual fraud: see, as to the overseas authorities: in the Privy Council, Asset Co Ltd v Mere Roihi [1905] UKLawRpAC 11; [1905] AC 176; Loke Yew v Port Swettenham Rubber Co Ltd [1913] UKLawRpAC 11; [1913] AC 491; Waimiha Sawmilling Co Ltd (in liq) v Waiane Timber Co Ltd [1926] AC 101; Frazer v Walker [1976] 1 AC 569; see also, in the High Court of Australia, Wicks v Bennett ([1921] HCA 57; [1921] HCA 57; 1921) 30 CLR 80 and Breskvar v Wall (1971) 126 CLR 376. Mudge has been frequently later cited with approval: Keindip v The State of Papua New Guinea [1993] PNGLR 28; Timano v Timano [1993] PNGLR 334; Mamun Investments v Ponda [1995] PNGLR 1; Kiso v Otoa [2013] PGSC 3; SC1222; Paga No 36 Ltd v Eleadona [2018] PGSC 17; SC1671; Soto v Our Real Estate Ltd [2018] PGSC 55; SC1701; Timothy v Timothy [2022] PGSC 82; SC2282. However, it must be acknowledged that, this notwithstanding, a competing line of authority has developed in this jurisdiction, which allows that fraud may also be constructive fraud. The cases concerned are collected in Timothy v Timothy and need not be detailed. Although that notion has been consistently rejected in the overseas authorities mentioned, the position in Papua New Guinea has not finally been resolved...
27. In our view the correct meaning of “fraud” is actual fraud. In light of such foundational authorities as Mudge v The Secretary for Lands [1985] PNGLR 387, there is no room for constructive fraud in interpreting s 33(1)(a) of the Land Registration Act (see also, for example, H.Q.H Enterprises Ltd v Wangbao Trading Ltd [2023] SC2419 at [4]-[8]). As we explained to Counsel during the hearing, it is a matter of fundamental public policy that title under the Land Titles Register be protected in the terms mandated by the legislation. It follows that avoidance of such title must be in accordance with the strict provisions of the legislation. As Kidu CJ explained in Mudge:
    

The Torrens system of registered title of which the Act is a form is not a system of registration of title but a system of title by registration. That which the certificate of title describes is not the title which the registered proprietor formerly had, or which but for registration would have had. The title it certifies is not historical or derivative. It is the title which registration, itself has vested in the proprietor. Consequently, a registration which results from a void instrument is effective according to the terms of the registration. It matters not what the cause or reason for which the instrument is void. The affirmation by the Privy Council in Frazer v Walker of the decision of the Supreme Court of New Zealand in Boyd v Mayor of Wellington [1924] NZGazLawRp 58; [1924] NZLR 1174 at 1223 now places that conclusion beyond question. Thus the effect of the Stamp Act 1894 (Qld) upon the memorandum of transfer in this case is irrelevant to the question whether the certificate of title is conclusive of its particulars.

28. Similarly Pratt J in Mudge noted that the assurance of title is essential to a sound land holding and registration system. We agree as a matter of policy.
    
29. In the present case, the primary Judge noted that fraud had not been pleaded. His Honour found no higher than that there had been “strong irregularities” in the relevant process. This finding was not the subject of any cross-appeal, or Notice of Contention, by the respondents. We are not prepared to find that, somehow, his Honour’s reasons included a finding of “constructive fraud” as submitted by the respondents. Even if his Honour was of the view that the facts supported a finding of “constructive fraud”, we consider his Honour would have been wrong to so find.

Customary land

30. Finally, and in any event, we would allow the appeal on the basis that the primary Judge erred in determining that the Land was actually customary land. As the Supreme Court clearly found in Kimas v Oala [2015] SC1475:
    
    6. It is settled law that the National Court has no jurisdiction to hear and determine disputes concerning ownership by custom of any land, including a dispute as to whether any land is or is not customary land. Such disputes fall within the exclusive jurisdiction of the Land Titles Commission under Section 15 (determination of disputes) of the Land Titles Commission Act, which states:

The Commission has, subject to this Act, exclusive jurisdiction to hear and determine all disputes concerning and claims to the ownership by custom of, or the right by custom to use, any land, water or reef, including a dispute as to whether any land is or is not customary land and may make all such preliminary inquiries and investigations as it deems necessary for the purpose of hearing and determining the disputes and claims. [Emphasis added.]

31. The fact that the parties had apparently agreed that the primary Judge could make a determination as to the issue of whether customary land existed is irrelevant. The National Court lacks the jurisdiction to do so. The finding of his Honour in this respect was an appellable error.

CONCLUSION

32. The appeal should be allowed and the orders of the National Court quashed. Costs should follow the event.
    

THE COURT ORDERS THAT:

(1) The appeal is allowed.
(2) The Orders of the National Court made on 28 September 2024 in proceedings OS (JR) No. 57 of 2019 are quashed.
(3) The First Respondents are to pay the costs of the Appellants of the proceedings in the National Court and of and incidental to the appeal, such costs to be taxed if not otherwise agreed.

________________________________________________________________
Lawyers for the appellants: Ashurst Lawyers
Lawyers for the first respondents: Kuma Lawyers
Lawyer for the second to fifth respondents: Solicitor-General