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

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

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

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, s33 (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 s33(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 s33(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 Ltd v John Mea [1993] PNGLR 215; Hi Lift Co 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 The Honourable Dr Puka Temu (2007) N3252; Steamships Trading Co Ltd v Garamut Enterprises Ltd (2000) N1959; Steamships Trading Co 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.

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...