Elizabeth Kanari v Augustine Wiakar and Registrar of Titles (2009) N3589

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 16 February 2009
• Court: National Court
• Citation: (2009) N3589
• Docket Number: WS NO 562 OF 2007
• Year: 2009
• Judgement Number: N3589

Full Title: WS NO 562 OF 2007; Elizabeth Kanari v Augustine Wiakar and Registrar of Titles (2009) N3589

National Court: Cannings J

Judgment Delivered: 16 February 2009

N3589

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 562 OF 2007

ELIZABETH KANARI

Plaintiff

V

AUGUSTINE WIAKAR

First Defendant

REGISTRAR OF TITLES

Second Defendant

Kimbe: Cannings J

2008: 16 October, 10 December

2009: 16 February

JUDGMENT

LAND – State Lease – agricultural lease – death of registered proprietor – registration of transfer to another person – no evidence of instrument of transfer – allegation of fraud – meaning of “fraud” – Land Registration Act, Section 33(1)(a).

The person who was the registered proprietor of a State Lease died intestate after living on and developing the land over a period of 23 years. During that time another person consistently complained that he should be the registered proprietor. Three years after the death of the registered proprietor, the lease was transferred from him to the first defendant, the son of the person who consistently complained that he should be the registered proprietor. The plaintiff, the widow of the deceased registered proprietor, challenged the first defendant’s title, claiming that the lease was transferred by fraud, and seeking orders that the transfer is null and void and that her late husband be restored as registered proprietor.

Held:

(1) “Fraud” in Section 33(1)(a) of the Land Registration Act includes not only actual fraud but circumstances in which interests in land have been transferred in an obviously unlawful or irregular manner (Koitachi Ltd v Walter Schnaubelt (2007) SC870 considered; Emas Estate Development Pty Limited v John Mea and The State [1993] PNGLR 215 applied).

(2) The transfer from the deceased registered proprietor to the first defendant was obviously unlawful and irregular, as it took place following the death of the transferor, who had died intestate, and no person had been appointed to administer his deceased estate.

(3) The transfer amounts to fraud for the purposes of Section 33(1)(a) of the Land Registration Act and it was appropriate to make the sort of orders sought by the plaintiff.

Cases cited

The following cases are cited in the judgment:

Emas Estate Development Pty Limited v John Mea and The State [1993] PNGLR 215

Hi-Lift Company Pty Ltd v Miri Setae [2000] PNGLR 80

Koitachi Ltd v Walter Schnaubelt (2007) SC870

Mision Asiki v Manasupe Zurenuoc (2005) SC797

Mudge v Secretary for Lands [1985] PNGLR 387

Ramu Nickel Ltd v Temu (2007) N3252

Steamships Trading Company Ltd v Garamut Enterprises Ltd (2000) N1959

The Papua Club Inc v Nusaum Holdings Ltd (No 2) (2004) N2603

Abbreviations

The following abbreviations appear in the judgment:

DCJ – Deputy Chief Justice

Inc – Incorporated

J – Justice

Ltd – Limited

N – National Court judgment

No – number

OPIC – Oil Palm Industry Corporation

PNGLR – Papua New Guinea Law Reports

SC – Supreme Court judgment

V – versus

WNB – West New Britain

WS – Writ of Summons

STATEMENT OF CLAIM

This was a claim for orders and declarations regarding a State Lease.

Counsel

G Linge, for the plaintiff

M S Wagambie, for the first defendant

16 February, 2009

1. CANNINGS J: This case is the latest chapter in a long-running saga of disputed ownership of a block of land in the Buvussi oil palm settlement near Kimbe. The block, of 6.2 hectares, is covered by a State Lease, an agricultural lease. The land is formally described as Portion 1357, Milinch Megigi, Fourmil Talasea.

2. The official copy of the State Lease shows the following chain of title:

· 28 May 1970 – the colonial administration granted the lease to Topukaliu Topikolo;

· 16 April 1974 – lease transferred from Mr Topikolo to Bernard Tonuknuk;

· 7 February 1978 – lease transferred from Mr Tonuknuk to Tangen Kanari;

· 4 November 2004 – lease transferred from Mr Kanari to Augustine Wiakar.

3. The dispute now before the court is between:

· the plaintiff, Elizabeth Kanari, who is the widow of Mr Kanari, he having died in 2001;

· the first defendant, Augustine Wiakar, who is the current registered proprietor of the lease, the son of a man, Alois Wiakar, who says he bought the block from Mr Tonuknuk in 1976 and put Mr Kanari in as a caretaker.

THE PLAINTIFF’S CASE

4. Mrs Kanari says that she and her late husband married and moved on to the land in 1978, then obtained a bank loan and developed the block by planting and harvesting oil palm. Alois Wiakar complained over a long period that the land was his, but her husband never agreed with that and always maintained that he was the rightful owner. She says that the lease was transferred to Augustine Wiakar without the knowledge or consent of herself or any member of her family. The transfer took place three years after her husband’s death and must be regarded as fraudulent. Mr Kanari died intestate (without leaving a will). She wants the court to restore her late husband as the registered proprietor so that she and her eldest son, Gideon Kanari, can apply to have the lease transmitted by custom.

THE FIRST DEFENDANT’S CASE

5. Augustine Wiakar says his father, Alois, was the one who purchased the block from Bernard Tonuknuk in 1976. His father bought the land for him. He was seven years old at the time. His father put Mr Kanari on the land as a caretaker in 1977 and only realised in 1992 when he managed to get hold of the lease that Mr Kanari had somehow got his name on it as registered proprietor. In 1993 his father took the matter to the local land mediation committee which decided in 1998, with the agreement of OPIC, that he was the rightful owner of the block. Augustine Wiakar argues that the 1978 transfer from Mr Tonuknuk to Mr Kanari was fraudulent. The 2004 transfer from Mr Kanari to himself was in compliance with the decision of the local land mediation committee, and facilitated by the WNB Provincial Lands Officer, he says. Mr Wiakar has presented, amongst others, affidavits by his father and Mr Tonuknuk, in support of those propositions.

ISSUES

6. The principal issue is whether the 2004 transfer of the lease from Mr Kanari to Mr Wiakar is effective. Before determining that, it is necessary to go back to the 1978 transfer from Mr Tonuknuk to Mr Kanari. But even before determining that, there are two preliminary points made by Mr Wiakar’s counsel, Mr Wagambie, which must be resolved.

7. I will address the issues in this order:

1 Has the plaintiff breached the Claims By and Against the State Act?

2 Does the plaintiff have standing to bring these proceedings?

3 Was the 1978 transfer from Mr Tonuknuk to Mr Kanari effective?

4 Was the 2004 transfer from Mr Kanari to Augustine Wiakar effective?

1 HAS THE PLAINTIFF BREACHED THE CLAIMS BY AND AGAINST THE STATE ACT?

8. Mr Wagambie submitted that the plaintiff had to give notice in writing of her intention to make a claim against the State under Section 5 of the Claims By and Against the State Act, as she joined the Registrar of Titles as a defendant. She failed to give notice within six months after the occurrence out of which the claim arose. She also failed to serve the writ and statement of claim on the Registrar. Therefore the proceedings should be dismissed, Mr Wagambie asserted.

9. I reject this submission. The notice requirements of the Claims By and Against the State Act apply only to actions that are founded on contract or tort or breach of constitutional rights (Mision Asiki v Manasupe Zurenuoc (2005) SC797). The present proceedings are not based on any of those sorts of cause of action. There was no need to give notice to the State under Section 5. Nor was there any need for the Registrar to be served. That was desirable but not a necessary procedural step for the plaintiff to take.

2 DOES THE PLAINTIFF HAVE STANDING TO BRING THESE PROCEEDINGS?

10. Mr Wagambie submitted that Mrs Kanari is not the correct person in law to institute these proceedings.

11. He did not elaborate on the submission and I am at a loss to see any merit in it. Clearly Mrs Kanari has an interest in the proceedings. She was living on the land and the lease was registered in the name of her husband for more than 20 years. She is aggrieved by the transfer of the lease to Mr Wiakar. She has a legitimate legal interest in the subject matter of the proceedings.

3 WAS THE 1978 TRANSFER FROM MR TONUKNUK TO MR KANARI EFFECTIVE?

12. Mr Wagambie submitted that all the evidence points to this transfer being a fraudulent transaction. Mr Tonuknuk has sworn an affidavit that he sold the land to Alois Wiakar. Mr Kanari was only put on the land as a caretaker. The plaintiff has not produced the transfer instrument or any other document to provide evidence of a legitimate transfer of the lease in 1978. The local land mediation committee and other authorities such as OPIC and the Provincial Lands Officer inquired into the matter over a number of years and decided that Alois Wiakar was the legitimate owner of the land and that Mr Kanari had to hand it back to him or his son, Augustine.

13. I reject this submission for two reasons. First, the official copy of the State Lease shows that the transfer from Mr Tonuknuk to Mr Kanari was registered in 1978. Mr Kanari thereupon became the registered proprietor and became entitled to the protection of...