Ben Titi v William Onglo

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 02 August 2018
• Citation: (2018) N7394
• Court: National Court
• Year: 2018
• Judgement Number: N7394

Full : OS (HR) No 6 of 2016; Ben Titi, Ken Gaso & 12 Others v William Onglo and Luther Sipison, Secretary for Lands & Physical Planning and Hon Benny Allan, Minister for Lands & Physical Planning and Registrar of Titles and the Independent State of Papua New Guinea and John Adi Gusave and William Onglo v Ben Titi, Ken Gaso & 12 Others (2018) N7394

National Court: Cannings J

Judgment Delivered: 2 August 2018

N7394

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (HR) NO 6 OF 2016

BEN TITI, KEN GASO & 12 OTHERS

Plaintiffs

V

WILLIAM ONGLO

First Defendant

LUTHER SIPISON,

SECRETARY FOR LANDS & PHYSICAL PLANNING

Second Defendant

HON BENNY ALLAN,

MINISTER FOR LANDS & PHYSICAL PLANNING

Third Defendant

REGISTRAR OF TITLES

Fourth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fifth Defendant

JOHN ADI GUSAVE

Sixth Defendant

AND

WILLIAM ONGLO

Cross-Claimant

V

BEN TITI, KEN GASO & 12 OTHERS

Cross-Defendants

Waigani: Cannings J

2017: 9 November,

2018: 11 April, 30 May, 2 August

LAND – Government land – State Leases – indefeasibility of title – alleged fraud in transfer of Agricultural Lease – meaning of fraud – whether a case of constructive fraud.

LIMITATION PERIODS – whether an action commenced more than six years after date of alleged fraud is time-barred – Frauds and Limitations Act, Sections 16, 18.

REMEDIES – appropriate relief where State Lease found to have been granted in a case of fraud – whether order for forfeiture of Lease should be made.

At issue in this case was an Agricultural Lease over a 4.092-hectare area of government land. The first defendant is the registered proprietor of that Lease. The plaintiffs commenced proceedings against the first defendant and five other defendants. They claimed to be long-term occupiers of the land covered by the Agricultural Lease, which was granted to an incorporated business group formed by their ancestors. They claimed that the sixth defendant and his family members secretly changed the name and membership of the business group, so that the Agricultural Lease was held by a newly named business group. They claimed that the sixth defendant then, without the knowledge or consent of the plaintiffs, arranged for the Agricultural Lease to be transferred secretly to the first defendant, who became the new registered proprietor. The plaintiffs claimed that the circumstances leading to the first defendant becoming the registered proprietor were so irregular and suspicious and non-transparent as to amount to a case of constructive fraud. The plaintiffs sought declarations and orders to the effect that the first defendant’s title was null and void and that the Agricultural Lease be held in constructive trust by the Registrar of Companies pending re-registration of the business groups involved with the land. The first and sixth defendants argued as preliminary issues that the proceedings should be summarily dismissed on various grounds including that: the plaintiffs lacked standing and were mere invitees or strangers; the plaintiffs’ statement of claim was defective as it failed to comply with the requirements of the National Court Rules regarding pleading of fraud; the proceedings were frivolous and vexatious as the plaintiffs had, at most, equitable interests in the land that had to yield to the superior legal interest of the first defendant and the plaintiffs had not exhausted procedures under the Land Registration Act for challenging the first defendant’s title. The second to fifth defendants (the State and various government officials) also argued preliminary issues that the proceedings be summarily dismissed, for: failing to disclose a reasonable cause of action; and being time-barred under the Frauds and Limitations Act. As to the merits of the claim, all defendants denied all allegations of fraud and argued that the first defendant had been lawfully granted the Agricultural Lease and had indefeasible title and that the plaintiffs had failed to establish a case of fraud. The first defendant filed a cross-claim against the plaintiffs (cross-defendants), pleading that their refusal to comply with reasonable requests to vacate the land over a number of years had led to substantial delays in implementation of the first defendant’s business and farming plan for the land, and seeking damages.

Held:

(1) All of the defendants’ preliminary arguments were dismissed. The plaintiffs were long-term occupiers of the land and had an equitable interest in the land, they did not lack standing and were not mere invitees or strangers. The statement of claim adequately pleaded a case of fraud. The fact that the plaintiffs had equitable interests did not mean that such interests could never prevail over the legal interest of the first defendant. The proceedings were not frivolous or vexatious. The procedures under Part VIII (caveats) of the Land Registration Act did not have to be exhausted prior to challenging the first defendant’s title through court proceedings. The statement of claim adequately disclosed a reasonable cause of action in constructive fraud. The proceedings were not time-barred under the Frauds and Limitations Act.

(2) The transfer of the Agricultural Lease to the first defendant was a case of constructive fraud as the circumstances of the transfer, including the change in name of the original registered proprietor without the knowledge or consent of the plaintiffs, were so unsatisfactory and irregular that it was tantamount to fraud, warranting the setting aside of transfer of title.

(3) A declaration was made that the transfer of the Lease and the subsequent granting of interests in the land covered by the Lease, including State Leases granted or transferred as a result of the subdivision of that land, are liable, subject to a further hearing or agreement between the parties, to be set aside, forfeited or transferred or subject to such other orders of the Court, as are necessary to do justice in the circumstances of the case.

(4) As all the first defendant’s arguments in support of the cross-claim had been incorporated into their defence to the plaintiff’s case, he was unable to prove any ground on which the cross-claim was based. Besides that, nothing was admitted into evidence on behalf of the first defendant. The cross-claim failed.

(5) The question of what further declarations and orders should be made will be addressed at a further hearing.

Cases cited

The following cases are cited in the judgment:

Dumal Dibiaso ILG v Kola Kuma (2005) SC805

Elizabeth Kanari v Augustine Wiakar (2009) N3589

Emas Estate Development Pty Ltd v John Mea & Ors [1993] PNGLR 215

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

Institute of International Affairs Inc v High Tech Industries Ltd

Kapiura Trading Ltd v Bullen (2012) N4903

Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120

Lae Rental Homes Ltd v Viviso Seravo (2003) N2483

Mosoro v Kingswell Ltd (2011) N4450

Open Bay Timber Ltd v Minister for Lands & Physical Planning (2013) N5109

Pius Tikili v Home Base Real Estate Ltd (2017) SC1563

Ramu Nickel Ltd v Temu (2007) N3252

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

Vitus Kais v Sali Tagau (2016) N6159

West New Britain Provincial Government v Kimas (2009) N3834

Yakananda Business Group Inc v Minister for Lands (2001) N2159

STATEMENT OF CLAIM

This was a trial in which the plaintiffs challenged the granting of a State Lease over Government land on the ground of fraud.

Counsel

J J Lome & S Phannaphen, for the Plaintiffs & the Cross-Defendant

S Bonner & J Kep, for the First & Sixth Defendants & the Cross-Claimant

G Akia, for the Second, Third, Fourth & Fifth Defendants

2nd August, 2018

1. CANNINGS J: This case is about an area of Government land of 4.092 hectares at Nine Mile, National Capital District, known as “Morobe Block”. Its formal description is Portion 957, Milinch of Granville, Fourmil Moresby, National Capital District.

2. The land was made the subject of a 99-year Agricultural Lease in 1988, granted to Nine Mile Farming Business Group Incorporated. In 2013 the Lease was transferred to William Onglo, the first defendant, who is the present registered proprietor.

3. Ben Titi and Ken Gaso and 12 other persons are the plaintiffs. They claim to be long-term occupiers of the land. They commenced proceedings by originating summons against the first defendant and other defendants, disputing the first defendant’s title. I directed the plaintiffs to file a statement of claim, which they did, and the proceedings have continued on pleadings. The other defendants are the Secretary for Lands and Physical Planning, the Minister for Lands and Physical Planning, the Registrar of Titles and the State (second to fifth defendants) and John Adi Gusave (the sixth defendant), who the plaintiffs allege colluded with the first defendant to arrange secret transfer of the Lease to the first defendant.

4. The plaintiffs claim that the Nine Mile Farming Business Group Inc was formed by their ancestors in the 1980s. They claim that the sixth defendant and his family...