Mokonda Reina Rema v Roy Yaki, MP and Isaac Lupari and National Housing Corporation and Raga Kavana, Registrar of Titles and the Independent State of Papua New Guinea (2019) SC1874

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom, Anis and Berrigan JJ
• Judgment Date: 30 October 2019
• Court: Supreme Court
• Citation: (2019) SC1874
• Docket Number: SCA No 177 of 2016
• Year: 2019
• Judgement Number: SC1874

Full Title: SCA No 177 of 2016; Mokonda Reina Rema v Roy Yaki, MP and Isaac Lupari and National Housing Corporation and Raga Kavana, Registrar of Titles and the Independent State of Papua New Guinea (2019) SC1874

Supreme Court: Kirriwom, Anis and Berrigan JJ

Judgment Delivered: 30 October 2019

SC1874

PAPUA NEW GUINEA

[IN THE SUPREMECOURT OF JUSTICE]

SCA No. 177 of 2016

BETWEEN

MOKONDA REINA REMA

Appellant

AND

ROY YAKI, MP

First Respondent

AND

ISAAC LUPARI

Second Respondent

AND

NATIONAL HOUSING CORPORATION

Third Respondent

AND

RAGA KAVANA, THE REGISTRAR OF TITLES

Fourth Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fifth Respondent

Waigani: Kirriwom, Anis and Berrigan JJ

2019: 28th August and 30th October

SUPREME COURT – Appeal –S. 5 of the Claims Against the State Act –Proceedings time-barred against the State – S. 33 of the Land Registration Act - Indefeasibility of title - Failure to plead fraud – Failure to establish binding agreement for sale of real property –Requirements of the National Housing Corporation Act considered –Failure to plead or establish conspiracy to effect a breach of contract –Appeal dismissed.

Cases Cited:

Papua New Guinea Cases

Paul Tohian v Tau Liu (1998) SC566

Mineral Resources Development Company v Matthew Sisimolu (2010) SC 1090

Rosemary John v James Nomenda (2010) N3851

PNG Power Ltd v Augeria (2013) SC1245

Brian Joshia v Stephen Raphael (2017) SC1665

Keka v Yafaet (2018) SC1673

Overseas Cases

Lumley v Gye (1853) 2 E & B 216

OBG Ltd v Allan [2008] 1 AC 1

Palmer Birch (a partnership) v Lloyd [2018] EWHC 2316 (TCC)

References Cited

Section 33 of the Land Registration Act Chapter,1981

Section 4 of the Frauds and Limitations Act, 1988

Sections 2, 3, 37 and 38 of the National Housing Corporation Act, 1990

Section 5 of the Claims By and Against the State Act, 1996

Counsel

Mr N. Kubak with Miss G. Kubak, for the Appellant

Mr P. Othas, for the Second, Third, Fourth and Fifth Respondents

DECISION

30 October, 2019

1. KIRRIWOM J: I have read the opinions of Berrigan J and Anis J and for the reasons each has respectively reached a decision, I concur. I agree that the appeal be dismissed for the same reasons and the orders proposed. I have nothing to add.

2. ANIS J: I have had the opportunity to read the judgment of Justice Berrigan. I concur with her Honour’s reasoning and outcome and I would adopt them, that is, in regard to the dismissal of the appeal. However, part of my reasoning is structured differently as I will explain.

3. The land, which is the subject of dispute in this appeal, consists of a residential property. It is situated at Paga Hill in Port Moresby in the Nation’s Capital. It is described as section 27 allotment 23 (the Property). The appellant’s main claim at the National Court (the trial Court) was for breach of contract, or more specifically and as I would call it, breach of promise to sell land, in this case, the Property. The appellant had alleged before the trial Court that betweeen1993 and 1995, the third respondent had agreed with him that it would sell the Property which it (i.e., the third respondent) had owned, to him (i.e., the appellant). The appellant claimed that the said agreement was partly written and partly oral. On 25 October 2016, the National Court dismissed the proceeding.

4. The appellant then filed this appeal. His notice of appeal was filed on 5 December 2016. His grounds of appeal read, and I quote in part:

3.1 The learned primary judge erred in fact and in law in not finding that there was a legally binding contract between the Plaintiff and National Housing Corporation to purchase the Paga Hill Property.

3.2 The learned primary judge erred in fact and in law in holding that the Plaintiff had not given a section 5 Notice pursuant to the Claims By and Against the State Act, when the evidence before the Court substantially showed otherwise.

3.3 The learned primary judge erred in fact and in law in relying on a precedence from another jurisdiction to construct the legal meaning and implications of a Home Ownership Scheme that was uniquely Papua New Guinean and created by and governed and regulated entirely by the national policy and law, and therefore clearly distinguishable.

3.4 The learned primary judge erred in fact and in law in holding that negotiations and discussions that underpinned the entire prevailing scheme of arrangement for the acquisition of residential properties pursuant to the Government Home Ownership Scheme, did not amount to a contractual arrangement of a contract.

3.5 The learned primary judge erred in fact and in law in not dealing with the entire 16 issues that were properly before the Court and as restated by the primary court in its judgment, as being paragraphs 1 to 16 as “Issues.”

3.6 The learned trial judge erred in fact and in law in failing to consider and give due weight to the whole of the evidence adduced by the Appellant at the trial in support of his claim, in particular –

(a) evidence showing the continuing instalment payment of monies by the Appellant to the National Housing Corporation pursuant to duly executed official documents; and

(b) evidence showing the acceptance by the National Housing Corporation of the relevant periodic payments of monies by the Appellant; and

(c) evidence as to the State’s conduct through its various appropriate law officers, in accepting correspondences substantially meeting the requirements of section 5 of the Claims By and Against the State Act.

3.7 The learned trial judge erred in fact and in law in refusing to give weight or consider at all the evidence that was properly before the court which showed that the Appellant was paying for and thus was the owner of the Paga Hill Property.

3.8 The learned trial judge erred in law and in fact in not finding that under the prevailing scheme of arrangement for Government Housing Scheme, a Contract for Sale is only executed after full and final payment by the purchaser, in this case the appellant.

5. The appellant originally commenced proceedings by way of an originating summons. It was later converted into pleadings and he was required to file a statement of claim. The statement of claim itself had been amended on many occasions since 1998. The appellant’s final amended statement of claim was filed on 30 July 2010 (Amended Statement of Claim). The following events I must say were significant as at 30 July 2010. Firstly, the third respondent by then had sold the Property to the second respondent, and the second respondent by then had owned the Property for 11 years. The second respondent purchased the Property from the third respondent on 20 April 1999. He presently has the title to the Property. The second significant factor is this. I note that fraud had not been alleged by the appellant in the Amended Statement of Claim. A perusal of the history of the proceeding that had transpired before the trial Court, which was also summarised in the submissions, shows that attempt had been made by the appellant to plead fraud in his Amended Statement of Claim on 25 July 2013. This was however rejected by the National Court. Since then, fraud had been abandoned as an issue for trial. And I note that this was evident in the parties’ filed Statement of Agreed and Disputed Facts and Legal Issues. The document is contained at page 523, Volume 2 of the Appeal Book.

6. So the trial Court did not have before it, as a material issue, allegation that was based on fraud. So let me say this. Had fraud been pleaded and proven before the trial Court, it could have amounted to or constituted a valid reason where the title to the Property may have been, for example, cancelled or be transferred back to the third defendant or the appellant as its registered proprietor, that is, upon proper proof of fraud being established to the satisfaction of the trial Court. I say this in view of section 33(1) of the Land Registration Act Chapter No. 191 (Land Registration Act). Section 33(1) provides various circumstances where a title or an interest in a property or a state lease may be cancelled. Fraud is one of them.

7. Section 33(1) states, and I quote in part:

(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

...