Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Timano v Timano [1993] PGNC 2; N1142 (5 March 1993)

Unreported National Court Decisions

N1142

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
RHONDA ELIZABETH TIMANO
V
LASSIE TIMANO

Mount Hagen

Woods J
16 February 1993
5 March 1993

REAL PROPERTY - Residential lease - Ownership - Identity of applicant lessee - Parties using the same name - Indefeasibility principle.

Facts

The widow and sister of Seth Timano both claimed to be the registered proprietor of a residential lease which Timano obtained and got registered in the name of Elizabeth Rhonda Timano, a name used by both claimants. The occupation description on the document of title fit the sister. However, that was the result of a clerical error.

Held

An error in the description of the occupation of the lessee does not affect or go to the principle of indefeasibility of title.

Cases Cited

Mudge v Secretary for Lands [1985] PNGLR 387.

Counsel

P Dowa, for the plaintiff.

P Kopunye, for the defendant.

5 March 1993

WOODS J: This is a dispute as to who is the registered proprietor of a residence lease, vol 125 folio 157, being a house property at allotment 20 section 24, Wabag, Enga Province. The plaintiff, Rhonda Elizabeth Timano, is the widow of the late Seth Timano, who was murdered in 1990. The defendant is referred to as Lassie Timano, the sister of the late Seth Timano, but she also calls herself Elizabeth Rhonda Timano.

The residence lease was granted to a Elizabeth Rhonda Timano, described as a computer operator, on 19 February 1992. Whilst the actual lease document was received by the defendant, the plaintiff says that she is the rightful holder of the lease.

The plaintiff states that around 1986 her husband applied for the subject land for her to develop as a residence. Having obtained a licence, her husband, through his company, proceeded to build a residence on the land at a cost of about K34,000. Initially, the family resided in the house, but then in 1990 the house was rented out. I note that the current rental agreement for the property was executed by the plaintiff, vide the signature on the rental agreement.

The plaintiff says that, having applied for the land and a licence being issued, it was still necessary to take further action, as the licence issued in 1986 was only a licence for one year. So in 1991, the plaintiff instructed a lawyer to lodge the application for the grant of a state lease under s 54 of the Land Act - see the document at folio 3 of the Lands Department file. On 15 November 1991, the plaintiff attended the meeting of the National Land Board at Waigani. In due course, the Land Board approved the granting of the residence lease to Rhonda Elizabeth Timano, as per minute of the meeting of the Land Board. However, the plaintiff never received the lease document. Somehow, that ended up in the possession of the defendant.

The defendant asserts that she applied for and was granted the licence over the property in 1986. Although her name was not Rhonda, she added the name Rhonda to her application because she thought that the Lands Department would not give her the land because she was already living in a Government house in Wabag. She says that she gave some money to her brother, the late Seth Timano, and he built a house for her on the property. She asserts that the original application for the land was by her, and therefore, the actual residence lease that issued was issued to her. Further, her occupation is a computer operator, as described in the lease.

An examination of the Lands Department file shows the following:

The first document on the file is an application form signed by the defendant and dated 1986. However, that document is not numbered as the first folio in the file. The defendant says that page is a copy of the original application she filed.

The folio numbered 1 on the file is the letter from the lands officer to Rhonda E Timano about the giving of the licence for one year.

The document numbered 2 on the file is the application signed by the plaintiff in 1991. This one is endorsed with notice of the issue of the licence over the land. The next document on the file is the receipt for the application fee, as paid by the plaintiff.

A document at folio 10 of the file is the exemption from advertisement for the subject land, signed in 1988 by the Minister for Lands. In that document, the applicant is described as Mrs Rhonda Elizabeth Timano. It states that she has almost completed a house for a residence. Can one assume that the use of the title Mrs clearly means the wife of Seth Timano?

The plaintiff has produced a copy of a letter signed by her husband in 1988 to a prospective lessee of the subject residence. In that letter, he quite clearly states that the licence over the land was in his wife's name.

At the meeting of the Land Board, it is clear that it was the plaintiff widow who was the applicant before the Board. The subsequent minutes and recommendation from the board can only refer to the plaintiff widow.

All the evidence quite clearly points to the land being acquired and developed for his wife, the plaintiff, by the deceased Seth Timano. The defendant has brought no evidence to support her story of contributing K18,000 to the construction of the house. Instead, her brother has clearly stated the house was for his wife.

It is submitted that the actual lease document is clearly in the name of the defendant and that, under the principles enunciated in Mudge v Secretary for Lands [1985] PNGLR 387, the title is indefeasible and cannot be challenged.

However, the lease is in the name of Elizabeth Rhonda Timano and, as the defendant herself states, the name Rhonda was never her real name but rather a name used by herself at the time to falsely pretend to the Lands Department that it was someone other than her who was interested in the land. Rhonda Timano is the widow of the late Seth Timano, and the name Elizabeth Rhonda Timano adequately describes the plaintiff. The occupation description of the owner of the land was clearly an error, which can be traced back to the unfolioed first document on the Lands Department file, which was added more recently by the defendant. The occupation description would have been inadvertently taken from that invalidated first document by the Lands Department clerk when preparing the details for the formal lease document. The description error does not affect or go to the indefeasibility of the title.

I am satisfied that it was the plaintiff in whose name the land was applied for, it was the plaintiff who was given the exemption, it was the plaintiff for whom the house was built, it was the plaintiff whom the Land Board heard and dealt with, and it was the plaintiff whom the Land Board recommended for the lease.

I declare that the lessee named as Elizabeth Rhonda Timano in the residence lease of section 24 lot 20, Wabag, is the plaintiff, the widow of the late Seth Timano.

I order that the defendant, Elizabeth Lassie Timano, is restrained from interfering with the plaintiff's use of the said property.

Lawyer for the plaintiff: P Dowa.

Lawyer for the defendant: Kopunye Lawyers.