Kol Toki v Moeka Morea Helai

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J, Cannings J, Lindsay J
• Judgment Date: 21 December 2016
• Citation: (2016) SC1558
• Court: Supreme Court
• Year: 2016
• Judgement Number: SC1558

Full : SCM NO 19 OF 2016; Kol Toki v Moeka Morea Helai by his next of kin Raka Helai & Mataio Helai and National Housing Corporation and Dr Malai Momak and Registrar of Titles (2016) SC1558

Supreme Court: Kandakasi J, Cannings J, Lindsay J

Judgment Delivered: 21 December 2016

SC1558

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM NO 19 OF 2016

KOL TOKI

Appellant

V

MOEKA MOREA HELAI BY HIS NEXT OF KIN

RAKA HELAI & MATAIO HELAI

First Respondent

NATIONAL HOUSING CORPORATION

Second Respondent

DR MALAI MOMAK

Third Respondent

REGISTRAR OF TITLES

Fourth Respondent

Waigani: Kandakasi J, Cannings J, Lindsay J

2016: 13, 21 December

LAND – government land – State Leases – indefeasibility of title – meaning of “fraud” in Land Registration Act, Section 33(1)(a) – whether actual fraud must be proven – whether proof of constructive or equitable fraud is sufficient.

GOVERNMENTAL BODIES – National Housing Corporation – two contracts for sale of same land – duty to comply with Court orders.

The appellant, the registered proprietor of a State Lease over a residential property, appealed against a decision of the National Court made in judicial review proceedings commenced by the children of the first respondent (deceased), which ordered, amongst other things, that the appellant’s title be quashed and that the appellant vacate the property and give up vacant possession to the children of the deceased first respondent. The grounds of appeal were thatthe National Court erred in law by: (1) not dismissing the proceedings due to the children of the deceased not having legal authority to represent the estate of the deceased; (2) setting aside the appellant’s indefeasible title as registered proprietor in the absence of actual fraud by the appellant, contrary to Section 33(1) of the Land Registration Act; (3) enforcing an order in separate National Court proceedings, to which the appellant was not a party.

Held:

(1) The proceedings in the National Court were judicial review proceedings in which the first respondent was plaintiff. It was not necessary for the deceased first respondent’s children to show that they were formally the legal representatives of the deceased’s estate. It was sufficient for them to demonstrate that they had a “sufficient interest’ in the subject matter of the application for judicial review. Clearly they had a sufficient interest for the purposes of Order 16, Rule 3(5) of the National Court Rules. Ground of appeal (1) was dismissed.

(2) It is not correct to say that the National Court had to insist on proof of actual fraud before quashing the appellant’s title. It is sufficient if constructive or equitable fraud is proven to exist. Constructive or equitable fraud will exist if interests in land are transferred in an obviously unlawful or irregular manner. Here the National Court properly formed the view that all transactions regarding the land that occurred after an order of the National Court in separate proceedings (that the National Housing Corporation transfer title to the first respondent’s children)were illegal and in breach of the order, thus constituting constructive or equitable fraud. Ground of appeal (2) was dismissed.

(3) The National Court properly took into account in granting relief that in separate proceedings the National Court had ordered that the National Housing Corporation transfer title to the first respondent’s children. It was inconsequential that the appellant was not a party to the proceedings. The critical fact was that the Court had made an order, which had not been obeyed. Ground of appeal (3) was dismissed.

(4) Furthermore none of the arguments underpinning the grounds of appeal were put to the National Court, despite there being full opportunity to do so. The appellant was guilty of arguing points of law that were not put to the court below, without seeking or being granted leave to do so.

(5) None of the grounds of appeal had merit and in any event raised points of law not raised in the National Court. The appeal was dismissed with costs.

Cases cited

The following cases are cited in the judgment:

Application by Herman Joseph Leahy (2006) SC855

Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853

Comrade Trustee Services Ltd v Arnold Daugle (2011) SC1105

Curtain Brothers (PNG) Ltd v University of Papua New Guinea (2005) SC788

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

Eric Kiso v Bennie Otoa & Ken Wutnalom (2013) SC1222

Ezekiel Sigi Anisi v Tony Waterupu Aimo (2013) SC1237

Fly River Provincial Government v Pioneer Health Services Limited (2003) SC705

Helai v National Housing Corporation, Momak, Toki & Registrar of Titles, OS (JR) No 625 of 2015, 26.07.16, unreported

Helifix Group of Companies Ltd v PNG Land Board (2012) SC1150

Koitachi Ltd v Walter Schnaubelt (2007) SC870

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

Mudge v Secretary for Lands [1985] PNGLR 387

Nakun Pipoi v Viviso Seravo (2008) SC909

NTN Pty Ltd v Board of Post and Telecommunications Corporation [1987] PNGLR 70

Papua Club Inc v Nusaum Holdings Ltd (2005) SC812Van Der Kreek v Van Der Kreek [1979] PNGLR 185

Pepi Kimas v Boera Development Corporation (2012) SC1172

PNG Deep Sea Fishing Ltd v Luke Critten (2010) SC1126

Sakaraias Akap v Kenneth Korakali (2012) SC1179

Telikom PNG Ltd v ICCC (2008) SC906

APPEAL

This was an appeal against a decision of the National Court that quashed registration of the appellant’s interest in Government land.

Counsel:

R Habuka, for the Appellant

A Mana, for the first Respondent

21 December, 2016

1. BY THE COURT: Kol Toki, the appellant, was the registered proprietor of a State Lease over a residential property on Government land at Korobosea, National Capital District, Section 77, Allotment 11. He appeals against a decision of the National Court, constituted by Justice Makail, in judicial review proceedings, which quashed the registration of his interest in the property (Helai v National Housing Corporation, Momak, Toki & Registrar of Titles, OS (JR) No 625 of 2015, 26.07.16, unreported).

BACKGROUND

2. The essential facts are not in dispute. The first respondent, Moeka Morea Helai, was a public servant who occupied the property for more than 30 years as a tenant of the National Housing Corporation. On 18 January 2008 he purchased the property from the NHC under the Morgan Scheme and was recognised as henceforth being the owner of the property. However there was no transfer of the title to Mr Helai. On 4 March 2013, Mr Helai died. Still there had been no transfer of title.

3. On 15 September 2014, despite having previously acknowledged that Mr Helai was the purchaser and owner of the property, the NHC offered to sell the property to Dr Malai Momak, the third respondent.

4. On 2 October 2014 the late Mr Helai’s next of kin, his children, Raka Helai and Mataio Helai, commenced proceedings in the National Court, OS No 690 of 2014, seeking orders to compel the NHC to transfer title to them. On 22 October 2014, following an inter partes hearing, the Court (Cannings J) granted orders:

· compelling the NHC to deliver up its property/conveyance file on the property to the custody of the Court;

· restraining any dealings in the property without the leave of the Court;

· referring the matter to mediation.

5. Despite that order, the NHC, the next day, 23 October 2014, entered into a contract of sale of the property with Dr Momak.

6. On 14 May 2015 Dr Momak entered into a contract of sale of the property with the appellant, Mr Toki.

7. On 1 June 2015 the National Court (Kariko J), in OS No 690 of 2014, ordered the NHC to transfer title to Mr Helai’s children.

8. Despite that order, on 29 June 2015, the NHC transferred title to Dr Momak and later on the same day, Dr Momak transferred title to Mr Toki.

9. The late Mr Helai’s children subsequentlycommenced the judicial review proceedings, OS (JR) No 625 of 2015, naming the NHC as first defendant, Dr Momak as second defendant, Mr Toki as third defendant and the Registrar of Titles as fourth defendant. They sought review of the NHC’s decisions, of 15 September 2014 to offer the property for sale to Dr Momak and, of 23 October 2014 to enter into a contract of sale with Dr Momak. They sought orders quashing those decisions and the resultant transactions that took place, including the transfers of the property, first from the NHC to Dr Momak, and secondly from Dr Momak to Mr Toki. They acknowledged that Mr Toki was the registered proprietor but argued that “fraud” had been perpetrated on the title to the property and that Mr Toki’s title should be set aside.

10. Makail J heard the matter on 22 April, 5 May and 11 and 21 July 2016 and delivered judgment on 26 July 2016. All defendants were legally represented, including the appellant, Mr Toki, who was represented by the same counsel representing him in the present appeal, Mr Habuka. We note, however, that on the last day before judgment, 21 July 2016, at which final submissions were to be made, there was no appearance for any of the...