N8141	

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 658 OF 2015

BETWEEN
CORNELIUS AKU IMBUNI
Plaintiff

AND
BENJAMIN SAMSON in his capacity
As the Registrar of Titles,
Department of Lands & Physical Planning
First Defendant

AND
ROMILY KILA PAT as the secretary
of the Department of Lands & Physical Planning
Second Defendant

AND
HON. BENNY ALLAN as the Minister
of the Department of Lands & Physical Planning
Third Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

AND
SAUWAN RAI
Fifth Defendant

Waigani:  Thompson J
2019: 13th November, 3rd December

LAND LAW - Fraud under S33 of Land Registration Act – must be actual fraud by registered proprietor – entitlement to plead fraud in judicial review proceedings – whether contract for sale and transfer documents were forged

Counsel:

Mr. T. Injia, for the Plaintiff
Ms. S. Tiankin, for the First – Fourth Defendants
Mr. S. Kati, for the Fifth Defendant

3rd December, 2019

1.	THOMPSON J:  	In 2001, Phillip Imbuni became the registered proprietor of the property on State Lease Volume 5 Folio 1711 Lot 14 Section 20 (“the property”).  He occupied the property until 16 March 2013, when he was killed in his house.  He died intestate, leaving a number of potential beneficiaries to his estate, including children, widows and the Plaintiff who was his elder brother.

2.	In June 2013, the Plaintiff gave notice to the Public Curator of his intention to apply for Letters of Administration. The Plaintiff unsuccessfully searched for the Owner’s Copy of the Title Deed, but it could not be found.  The Plaintiff conducted searches at the Department of Lands, but was informed that their file was missing and could not be located.  The Plaintiff lodged a Caveat, but it was unable to be registered because the Lands Department file could not be found.

3.	In December 2014 the Plaintiff attempted to pay the water bills for the property, on behalf of the deceased, but was informed that the property had been transferred to the 5th Defendant.  The Plaintiff wrote to the 2nd Defendant in December 2014, but did not receive a response.   

4.	In February 2015, the Plaintiff commenced proceedings on WPA 7 of 2015, applying for Letters of Administration over the estate.  In August 2015 the 5th Defendant issued proceedings in the District Court seeking eviction of the deceased’s relatives from the property.  The application for eviction was refused, on the basis that there was a bona fide dispute over the title to the property.

5.	In support of his eviction application, the 5th Defendant annexed an unsealed photocopy of a certificate of title to the property.  This was endorsed as both “Official Copy” and under that “Owner’s Copy”.  There was an endorsement of a transfer to the 5th Defendant on 13 May 2013.  

6.	The 5th Defendant also annexed a copy of a Demand for Payment Notice dated 3 December 2014, signed by an unidentified person on behalf of the 2nd Defendant, addressed to the 5th Defendant, which stated that K32,175.00 was owing for outstanding land rentals.  As the annual rent was shown as K2,475.00, this represented 13 years of annual rentals, covering the full period between when the deceased became the registered proprietor in 2001, until after his death in 2013.  In his covering affidavit, the 5th Defendant told the Court that since the deceased’s relatives had been unlawfully occupying the property, he had incurred the lease rentals shown in the Notice.  That was not correct, as over 12 years of rentals had been incurred prior to the 5th Defendant claiming ownership.

7.	Pursuant to S35 of the Land Registration Act (“LRA”), the 1st Defendant Registrar of Titles (“ROT”) must not register a transfer unless he is satisfied that the rent payable to the State has been paid to date.  Neither the 5th Defendant nor the 1st – 4th Defendants gave any explanation as to how a transfer of the Title could have been registered when 13 years of rent payable to the State remained outstanding.

8.	When the Plaintiff saw the 5th Defendant’s Affidavit in the District Court proceedings, it was the first time he had seen a copy of the certificate of title, which showed that the transfer to the 5th Defendant was entered two months after the death of the deceased.  The Plaintiff then issued these proceedings, seeking to quash the 1st – 4th Defendants decisions to register the Transfer and issue the title to the 5th Defendant, on the basis of fraud by the registered proprietor.

Standing

9.	The Defendants oppose this by submitting that the Plaintiff has no standing, because the deceased died intestate and so the estate vested in the Public Curator, and also on the basis that there were other potential beneficiaries, some of whom would have higher priority than the Plaintiff.  

10.	The Defendant’s argument is based on a misconception.  If the property was transferred before the death, it did not form part of the estate, and did not vest in the Public Curator.  If it was transferred after death, the property may have been vested in the Public Curator, but the Plaintiff is not either dealing with or claiming ownership of the property.  He is only seeking to enforce his rights as a potential beneficiary and potential Administrator to have the property form part of the estate.  The Plaintiff is seeking to protect his and all the other beneficiary’s potential interests by seeking orders which will merely have the effect of returning the property to the estate.  

11.	The issue of standing has already been resolved by the decision of the National Court to grant Leave to proceed by way of judicial review.  Leave could not be granted unless the Court was satisfied that the Plaintiff had sufficient standing to bring the proceedings.

12.	Even if it was not already resolved by the grant of Leave, the Plaintiff has established that he has a sufficient interest in the subject of the proceedings, as a potential beneficiary and potential Administrator of the estate.  Any of the other potential beneficiaries would have had standing to bring these same proceedings on the same basis.  However, they have not, and this Court is only concerned with this proceeding brought by the Plaintiff, who has shown a sufficient interest.

13.	A person may have sufficient interest within the meaning of Order 16 of the Rules, notwithstanding that he was not a party to the decision under review, provided he is a person aggrieved by the decision (Re Portion 56 Morobe (1971) PNGLR 442).  A person had sufficient interest to maintain proceedings for judicial review where the effect of the decision was to deprive that person of the right to claim ownership of the land (Olei v Provincial Land Court at Port Moresby (1984) PNGLR 29).

14.	The ROT’s purported decision to transfer the title to the 5th Defendant had the effect of depriving the Plaintiff (and other potential beneficiaries) of their right to have the property form part of the deceased’s estate, and he is thereby aggrieved by the decision.

15.	The argument on lack of standing, is rejected.

Status of Registered proprietor

16.	The Defendants further oppose the application on the basis that the Plaintiff cannot allege fraud against the 5th Defendant in judicial review proceedings, because the 5th Defendant is not a government body.  They rely on a National Court decision in Open Bay Timber Ltd & Anor v Lucas Dekena and Ors (2013) PGNC 81, which they say was affirmed by the Supreme Court in Nali Hole v Allan Mana (2016) SC1536.  They say that a person is unable to apply to set aside the ROT’s decision to register a title obtained by actual fraud of the registered proprietor, unless the registered proprietor was also a government body.  They say that the aggrieved person could only issue WS proceedings against the registered proprietor, alleging fraud.  

17.	The Supreme Court decision in Hole v Mana (and in Anson Ising v Lucy Ande (2014) SC1359) is not authority for the argument put forward by the Defendants. Those cases did not concern judicial review proceedings. They concerned an Originating Summons which only sought Declarations.  The Court found that allegations of fraud could not be prosecuted by way of an OS merely seeking declaratory relief, and should be prosecuted by way of a WS.  This differs from an OS in judicial review proceedings where the Plaintiff is seeking relief by way of certiorari to quash a decision made by a government body, based on fraud by the non-government registered proprietor, such as Koitachi Ltd v Zhang and ors (2007) PGSC11.

18.	In a case such as here, a primary right to set aside the title of a registered proprietor is provided under S33 (1) of the LRA.  The right given under S33 (1) (a) is in the case of fraud, and the common law case authorities have determined that this means fraud by the registered proprietor.  (see Paga No. 36 Ltd v Ealedona (2018) PGSC 17 and John Soto and Anor v Our Real Estate Ltd (2018) PGSC 55).  The aggrieved person must plead and prove fraud against the registered proprietor, whoever that may be, in order to quash the decision-maker’s decision to register the title.

19.	Where a person wishes to challenge the decision of a public officer in the course of his duties, and seeks an order in the nature of certiorari, the appropriate method is the procedure for judicial review set out in Order 16 (Masive v Okuk (1985) PNGLR 105).

20.	The Plaintiff wishes to challenge the ROT’s decision to register the Transfer and issue the Title to the 5th Defendant.  This should be done by way of judicial review, and not by writ of summons.  The Rules under Order 16 make sufficient provision for the Plaintiff to specifically plead all his Grounds for review, which may include fraud;  for all parties including the Defendants to file the appropriate affidavit evidence; and for identification of legal issues and proof of disputed facts, including discovery, interrogatories, notices to admit facts, witness summons, and so on.  A defendant in judicial review proceedings against whom fraud is alleged, is not deprived of any opportunity to fully defend the allegation.

21.	The argument relating to the registered proprietor not being a Government body, is rejected. 

Fraud

22.	The Plaintiff has pleaded fraud by the 5th Defendant, who is the purported registered proprietor, under S33 (1) (a) of the LRA.

23.	The Plaintiff alleges that the deceased’s signature on the Contract of Sale and Transfer instrument were forged by or at the direction of the 5th Defendant, and then fraudulently presented to the 1st Defendant for registration.

24.	The 5th Defendant did not produce copies of the contract or transfer in support of his eviction proceedings in the District Court.  Despite the disputes over occupation of the property after the deceased’s death in 2013, the eviction proceedings in 2015, and complaints to the police Fraud Squad and Department of Lands, photocopies were first produced by the 5th Defendant in his affidavit on 24 March 2016. The original documents have never been produced.   

The Evidence

25.	The author of the Contract was not identified.  The title page did not show the name of the lawyer who prepared the document, and none of the pages had headers or footers showing a file reference number.  Pursuant to S60 (2) of the Lawyers Act, it is an offence for a person who has not been admitted to practice as a lawyer, in expectation of a fee, to prepare a dutiable instrument regulating rights between parties, or to prepare a conveyance or instrument in relation to real property, such as a contract for the sale of land.  There was some suggestion that it had been prepared by the consultant, William Puio (“WP”) or by the deceased, who were not lawyers.   WP did not say in his affidavit that he had been asked to or had prepared it.  In fact, he said that the deceased invited him to witness the signing of a new contract of sale which he had arranged.

26.	The front title page appeared to be in a different font to the other pages.  The other pages were a standard form of contract, which included a requirement for a statutory declaration by the Vendor declaring that the State Lease rentals had been paid up to date, making the Contract conditional upon approval of the Minister of Lands, that unless such approval is obtained, the contract shall have no force, and stated that the purchase price was K250,000.00.  The Stakeholder was shown as Pato Lawyers.  The Contract was shown as having been signed by Phillip Imbuni in the presence of Yawan Tapo, and signed by the 5th Defendant in the presence of William Puio.  It was dated 20 December 2012. 

27.	The second page showed a partly illegible copy of a Nil Duty Stamp with a printed number over-written by hand to show “20545”.  The date is illegible.

28.	In relation to the Transfer, it was also an unsealed photocopy.  The original document has never been produced.  It also showed a Duty Stamp with the printed number over-written by hand to show “20544”, and with an illegible date. There was no Ministerial Approval, and no Statutory Declaration by the Vendor that all the outstanding land rents had been paid.  It was shown as signed by Phillip Imbuni and the 5th Defendant in the presence of Yawan Tapo on 20 December 2012, was lodged on 13 May 2013 and entered on 14 May 2013.

29.	The 5th Defendant says that he is a cousin and very close to Yauwon Tagon (“YT”) and spends half his time with him.  YT worked as his agent in his gold buying business.  The 5th Defendant says that in 2002-2003, he made various loans to the deceased. No receipts, acknowledgements, bank records or other documents were provided to show these loans.

30.	The 5th Defendant says that on 15 March 2004, YT told him that the deceased had not made loan repayments to his Bank which was going to foreclose, the deceased had asked Rimbink Pato (“RP”) to buy the property but he declined, the property was worth millions of kina, but that the 5th Defendant could buy it by paying off the mortgage of K200,000.00. 

31.	The 5th Defendant says that on 22 March 2004, he met the deceased and RP at the office of Pato Lawyers. He said that YT had brought K210,000.00 cash, which he offered to RP, who said that he needed a bank cheque for K150,000.00 in favor of Bank South Pacific, and K60,000.00 cash.   He says that he took the money back, obtained a bank draft for K150,000.00 payable to BSP, and then gave the Bank draft and K60,000.00 cash to RP.  He said that RP asked him and the deceased to sign a Contract of Sale and transfer, which they did, and that RP said that the purchase price was K250,000.00, comprised of K200,000.00 cash including K50,000.00 previously received by the deceased, and K10,000.00 for legal fees.  These figures did not add up.

32.	The 5th Defendant says that YT asked RP for receipts, and told RP that YT would collect the receipts the next day, because he now had to attend to other urgent matters.

33.	The 5th Defendant does not say that the deceased gave his Owner’s Copy of the Certificate of Title to RP, and does not say how Pato Lawyers could have prepared or lodged all the documents, without it.

34.	The 5th Defendant says that in June 2004, he and his family and YT commenced occupying the main house on the property, and the deceased and his family occupied a smaller house.  He says that from 2004 – 2012 he asked the deceased and YT for the title, but was told that there was a pending court case by the bank, and that RP was involved in elections.

35.	He says that at some time after June 2012, the deceased told him that he would arrange for a private consultant to effect transfer of the title because Pato lawyers had lost the contract documents.  The 5th Defendant does not say why the deceased, or he himself, did not simply ask Pato Lawyers to provide further copies.  An intention by the deceased to cease using Pato Lawyers without telling them,  because they had not carried out his instructions to sell the property and had lost the documents, was in contrast with the deceased’s letter to Pato Lawyers in 2001, expressing his appreciation for their work on the purchase of the property.  As RP was the deceased’s friend and as Pato Lawyers had acted for the deceased in the purchase of the property, it would be surprising that the deceased would not also have them act for him in the sale of the property. 

36.	The 5th Defendant says that on 20 December 2012 he and the deceased signed another contract and transfer, and the deceased’s signature was witnessed by William Puio, the consultant.  He then says he left it to the consultant and the deceased to have the title transferred.  He does not say why the Contract showed Pato Lawyers as stakeholder, when they were not involved in the transaction at all.  He does not say anything about payment to the stakeholder of the purchase price.

37.	There is another omission in the 5th Defendant’s evidence relating to this alleged transaction.  If the deceased had signed a contract and transfer, and received the purchase price, he would have had to hand over his Owner’s Copy of the certificate of title to the 5th Defendant for registration.  Neither the 5th Defendant nor YT nor WP say that the deceased gave the Owner’s Copy to any of them.  The 5th Defendant did not even say that the deceased had given the Owner’s copy to Pato Lawyers in 2004 but retrieved it from them in 2012, even though  they  were said to have lost the other documents.

38.	The 5th Defendant says that the consultant transferred the title to him on 13 May 2013 and gave the title document to him.  He does not say how this was done without production of the Owner’s Copy of the title.  He says that on 13 December 2013, the consultant told him that the land rentals, Eda Ranu water rates and NCDC charges were outstanding, and at his request, the consultant changed the records to his name.

39.	The photocopy of the Certificate of Title was not sealed by the Registrar of Titles as required by S7 of the Land Registration Act, and not identified by the ROT as a genuine document from its records.   It therefore could not be received by this Court as evidence of the 5th Defendant’s title. 

40.	The ROT gave evidence that the Lands Department file with respect to the property was missing, and could not be found despite numerous searches.  There was only an electronic entry showing that Phillip Imbuni was the sole registered proprietor, and that the land rentals were outstanding.  There were no further entries showing a transfer of title.

41.	The majority of the 5th Defendant’s evidence was hearsay, and unsupported by any records of the type which could be expected to have been produced, such as receipts, or acknowledgements of receipt signed by the deceased, bank records showing the source of the various monies allegedly given to the deceased, receipts or acknowledgments of receipt from RP or Pato lawyers, or the original of any document.  Little weight could be attached to his evidence.  

42.	It was not in dispute that the 5th Defendant had loaned K150,000.00 to the deceased in March 2004, as evidenced by the Bank records.  There was no evidence that this was not a loan but was part-payment of a purchase price for the sale of the property, and the 5th Defendant’s evidence on this point was firmly contradicted by RP.  

43.	RP gave evidence denying that he had prepared any document or agreement of any nature relating to any sale transaction between the deceased and the 5th Defendant in relation to the property, and denies having received cash or any other form of payment from the 5th Defendant in relation to the property.  He said that he had been a friend of the deceased, and that prior to his death, the deceased had made no mention of a transfer of the property.  He said that after the death, when the deceased’s relatives became involved in a dispute with the 5th Defendant over the property, he formed the opinion that the transfer of title was unlawful, and on behalf of the deceased’s relatives he tried to persuade the 5th Defendant to restore the property to the deceased’s estate, but the 5th Defendant refused. 

44.	I accept the evidence of RP in preference to the 5th Defendant’s evidence on the alleged sale.

45.	William Puio says that he met the deceased through the 5th Defendant.  He made numerous hearsay statements about what he was told by other people.  He says that on 20 December 2012 he signed a contract and transfer at the deceased’s request, but that he signed as “witness and consultant” for the 5th Defendant.  He says he agreed to help them with the transfer because the 5th Defendant cannot read or speak English.  He does not say that the deceased gave him the Owner’s Copy of the certificate of title to enable him to register the transfer.  

46.	He says that the 5th Defendant paid him K10,000.00 cash for his consultancy fee on the same day, but he did not lodge the contract and transfer documents for stamping until mid January 2013, and he lodged the documents with the ROT’s office in February 2013 “after paying the necessary fees”.  He does not say that he lodged the documents with the Owner’s Copy of the title, or how he lodged them without the Owner’s Copy of the title, and without payment of the outstanding land rentals.    

47.	As there is no Lands Department file, it could not be shown if the transfer was lodged with the Owner’s Copy of the title before or after the deceased’s death in March 2013.

48.	WP says that in April he followed-up the transfer of title, and had it registered in May 2013, after signing for the release of the certificate of title to him.  He says that in December 2013 the 5th Defendant told him that Pato Lawyers had not paid the land rent, Eda Ranu water and NCDC charges, and so he asked the 5th Defendant to “help change the records” to his name, which he did.   It is not clear why WP asked the 5th Defendant to change the records, which he says that the 5th Defendant “did successfully”, when the 5th Defendant was said to be illiterate and had paid K10,000.00 to WP to act on his behalf in the transaction.   

49.	Most of WP’s evidence was hearsay, and unsupported by any documentary evidence of the type which would be expected, including any documents showing that he was duly authorized by the deceased and the 5th Defendant to receive the Certificate of Title from the ROT, or his acknowledgment of receipt of the title.   He did not say that he obtained the Owner’s Copy of the certificate of title from the deceased.   He did not produce a supporting statutory declaration by the Vendor or Purchaser that the land rents had been paid.  He did not produce any documents showing that the transfer had been lodged for Ministerial Approval, or why Ministerial Approval had not been given.  He does not say he conducted any searches before lodging the documents.  He does not say how he was able to satisfy the ROT that all the land rents had been paid, before title could be registered.  Little weight could be attached to his evidence.

50.	The credibility of the 5th Defendant and his witnesses was further weakened by the form of their affidavit evidence.  Both the 5th Defendant and YT said that they were unable to read or write English.  Despite this, they signed and swore on oath a number of affidavits without any interpretation clause.   No evidence was given that the contents of the affidavits had been read over and explained to them by the Commissioner for Oaths, as required by Order 11 Rule 22 of National Court Rules.  Pursuant to Order 11 Rule 22 (4), where a certificate certifying that the affidavit was read and understood, does not appear on the affidavit, then it may not be used unless the court is satisfied that it was read and understood. No explanation was provided for why none of the affidavits contained the appropriate certificate. 

51.	As neither the 5th Defendant nor YT produced evidence to show that the affidavits had been read over to them and that they had understood them, this court cannot be satisfied that it was done.  The court was left with either assuming that the 5th Defendant and YT were not in fact illiterate, or that their affidavits should not be used.  I will allow the affidavits to be used, but only on the basis that the credibility of the contents is adversely affected by the absence of an interpretation clause, and that therefore the appropriate weight needs to be given to their evidence, particularly where it is unsupported or contradicted by other evidence.

52.	There was an affidavit by Barbara Simeon Imbuni who said that she was the widow of the deceased. After his death, she was charged with the deceased’s murder, and subsequently acquitted for lack of evidence.  She may therefore have been motivated by ill-feeling towards the deceased’s relatives who had referred her to the police.  Almost the entire affidavit was hearsay, purporting to state what had occurred between 2000 and 2004, when she only became the deceased’s wife in 2007. Little or no weight could be attached to her evidence.  

53.	There was also an affidavit by Elizabeth Bare, a former wife from 2001 - 2007.   Her evidence was to the effect that the 5th Defendant had loaned monies to the deceased in 2004 to settle the BSP loan, and that the deceased had told her that it was a loan which he intended to repay.  They rented out part of the property, and the deceased used part of the rental monies to repay some of the loan.

Disputed Signatures

54.	In relation to the deceased’s signatures on the contract and transfer, both parties submitted the copy documents to handwriting experts for evaluation.  The 5th Defendant did not produce the original documents, but only photocopies.  Surprisingly, the 5th Defendant was also able to provide photocopies of documents signed by the deceased which were neither to nor from the 5th Defendant, and which could only have been in the deceased’s personal records.  He does not say how or why those documents were in his possession.  

55.	The 5th Defendant’s expert was a Chief Sergeant of Police at the National Forensic Science Centre who said that he had over 25 years of experience, although he did not attach any evidence of his qualifications.  He said that he could not express a positive opinion because the documents were only photocopies, but that the deceased “is capable of producing more than one signature”, and that the disputed and undisputed documents had some indications of similarity.  

56.	The Plaintiff’s expert was a Forensic Handwriting Analyst with Lyons World Investigations and Forensic in Melbourne, Australia. He said that he had 24 years of experience, he attached copies of his qualifications, and had been accepted as an expert in numerous civil and criminal cases in various courts in Australia since 1991.  He said that his examination was limited by the lack of the original documents, but that the disputed signatures displayed differences in structure, spatial proportions  and apparent line quality, which provided some evidence to indicate that they were not genuine.

57.	I am required to attach the appropriate weight to expert evidence, but I am not required to accept it uncritically.   I am also entitled to take into account my own assessment of the disputed signatures, with the appropriate caution (see R v Magalu (1974) PNGLR 188 and The State v Baine (1989) PNGLR 89). Where comparisons are to be drawn from handwriting, caution is needed.  Unlike in Magalu and Baine’s cases, I have the benefit of expert evidence, and I am able to form an opinion as to the genuineness or otherwise of the signatures in dispute. 

58.	The documents presented to the handwriting experts showed that in the early years from 1999-2003, the deceased’s signature had a number of loops and flourishes, and his initials were not shown.  By 2009, his signature had been considerably simplified, with none of those earlier features, and with his initials shown first.  By 2012, his signature showed his initials first, with a confident and relatively simple signature, with none of the earlier loops and flourishes.

59.	The two disputed signatures on the contract and transfer which were said to have been signed by the deceased in 2012, were not similar to his other undisputed 2012 signatures.  They were similar to the earlier signatures from 1999-2003 which contain the flourishes and loops.

60.	I am  satisfied that the disputed signatures on the 2012 contract and transfer, display clear differences with the 2012 signatures on the undisputed documents, and are very similar to the signatures on the undisputed 1999-2003 documents. 

61.	It could not be denied that most people are capable of producing more than one signature.  Indeed, it is not at all uncommon in Papua New Guinea for persons to have more than one signature.  The fact that a person is capable of producing two signatures is not, however, evidence that the person did produce two signatures.  The Plaintiff’s expert has said that the disputed signatures are based on the model most commonly displayed in the samples, which were the signatures from 1999-2003.  He says that although they were pictorially similar, the disputed signatures displayed a number of differences which provided some evidence that they were not genuine.  

62.	When taking this in conjunction with my own examination of the documents, and exercising appropriate caution, I find that the two disputed signatures on the 2012 contract and transfer were similar to undisputed signatures from 1999-2003, and were quite different from the undisputed signatures from 2009-2012.  There was no evidence that the deceased used two different signatures from 2009-2012.  I am satisfied that the signatures purported to be signed in 2012 on the contract and transfer, were not signed by the deceased, and were copied from the 1999-2003 signatures.  As the signatures on the contract and transfer were purported to have been witnessed by Yawan Tapo/Yauwan Tagon, and all signed on the same day by the 5th Defendant and witnessed by William Puio, it is an inescapable inference that one of those persons forged the deceased’s signature, with the collusion of the others.  

63.	There were other relevant matters when considering the genuineness of the documents.   

64.	  In all his affidavits the 5th Defendant refers to YT as Yauwan Tagon, and this is also how YT identifies himself in his own affidavit, and as the person who signed the documents as the witness.  Despite this, the name of the witness on both the contract and transfer is shown as Yawan Tapo.  No explanation was provided by either YT or the 5th Defendant for the use of this different name.  

65.	The 5th Defendant’s evidence showed that he was prepared to say what was required, to support his case.  For example, in his affidavit in the District Court proceedings which he used to apply to evict the deceased’s relatives, he named Yauwan Tagon as one of the Defendants and said that they were his tribal enemies.  However, in his affidavit in these current proceedings, the 5th Defendant said that YT was his cousin and he was very close to him at all times.  To support his eviction proceedings, the 5th Defendant also attached a copy of the demand for payment of outstanding land rentals in the sum of K32,175.00, and said that he had incurred those rentals since the relatives had unlawfully occupied the land.  This was untrue, as the evidence showed that the deceased had not ever paid land rentals and the amount of K32,175.00 was outstanding after his death, and before the property was transferred to the 5th Defendant.  

66.	The 5th Defendant had made a substantial loan to the deceased nine years earlier, and it was undisputed that he had sought repayment from the deceased, who had intended to repay it, but had not repaid it before his death.  The amount of the loan was not equivalent to the purchase price of the property, which YT had told the 5th Defendant he could have for a fraction of its value.  The 5th Defendant gave no explanation for why the deceased would have transferred a property allegedly worth millions of Kina to him, for a fraction of the value.  

67.	YT’s evidence was also unsatisfactory. It contained inconsistencies, hearsay, and was unsupported by independent documentation.  For example, YT says that he signed the contract and transfer as the 5th Defendant’s witness, and that the consultant WP, signed as a witness for the deceased.  However, WP says that he signed as the witness for the 5th Defendant.  The documents contradict YT, by showing that he was the person who signed as witness for the deceased, and signed using a different name.

68.	The contract itself is an unsatisfactory document, even apart from the signatures.  It is just a standard form, which has not been amended to include the matters alleged by the 5th Defendant relating to his earlier payments of K150,000,00 and K60,000.00 as part-satisfaction of the purchase price.  There was no evidence that he paid the outstanding balance, or indeed any of the purchase price.  He did not pay the outstanding land rates, and the transfer was not given Ministerial approval.  The transfer was therefore prima facie unenforceable.  The failure to produce a duly approved transfer and a statutory declaration showing that the outstanding land rentals had been paid, should have precluded the transfer from being registered.  

69.	There is still no evidence that it had in fact been registered.   The 5th Defendant failed to produce the original or certified copies of the contract or transfer or certificate of title.  The Lands Department’s evidence was that no documents could be produced, because the file was missing, and they had no records apart from an electronic entry showing the deceased as the registered proprietor.

70.	The 5th Defendant did not produce copies of the contract or transfer which he alleges were prepared by Pato Lawyers and signed by he and YT in 2004.  It is not credible that a lawyer of Rimbink Pato’s seniority and standing, or his law firm, would accept instructions to act on a conveyance, prepare contracts and transfers on the same day, without the certificate of title, fail to conduct any prior Lands Department, NCD and Eda Ranu searches, fail to have the deceased sign a statutory declaration relating to outstanding land rentals, charge and receive K60,000.00, and fail to issue a receipt. It is not credible that the 5th Defendant or YT would pay K60,000.00, without getting any receipt.  It is not credible that RP or his firm would not simply have provided further copies of the Contract and Transfer if they had been asked to, if the signed documents had allegedly been lost.  It is not credible that the 5th Defendant and YT would allow eight years to pass without obtaining either a receipt or the alleged contract and transfer documents, or without instructing other lawyers to take action to recover the documents and the K60,000.00.  It is noteworthy that even now, seven years after the alleged 2012 transaction and fifteen years after the alleged 2004 transaction, the 5th Defendant has not issued legal proceedings against RP or Pato Lawyers for their alleged negligent or dishonest conduct.  

71.	It is not credible that after eight years inaction, the deceased agreed to sell the property for a price which YT said was a fraction of its value, and without retaining any copy of the contract or transfer. It is not credible that after allegedly waiting eight years for the transfer, the 5th Defendant did not immediately lodge the documents for registration, and it stretches credibility that the registration was said to have only been effected two months after the deceased’s death.  

72. 	The 5th Defendant had loaned K150,000.00 to the deceased in 2004.  This would have entitled him to make a claim against the deceased’s estate, for repayment of the loan.  However, there is a complete absence of credible or independent evidence corroborating any of the 5th Defendant’s evidence about an alleged sale of the property to him.   

73.	Despite knowing at least since these proceedings in 2015 that his transfer of title was alleged to have been fraudulent, the 5th Defendant only produced photocopies of the contract  and transfer in 2016, and has never produced the original documents, even to his handwriting expert who said that his assessment was hampered by the absence of the original documents.  

74.	The onus of proof of fraud in civil proceedings, has to be higher than on the balance of probabilities.  The standard of proof may require a greater satisfaction, depending on the gravity of the allegations made, and may require proof commensurate to the standard in criminal proceedings, of proof beyond reasonable doubt.  (see Paga No. 36 Ltd v Joseph Ealedona and ors (2018) PGSC 17).

75.	The Plaintiff’s allegation of fraud, is a serious one.  The standard of proof is therefore more than on the balance of probabilities, although not necessarily beyond reasonable doubt.  The fraud has to be actual, not constructive, and has to be by the registered proprietor (John Soto and ors v  Our Real Estate (2018)PGSC55.

76.	The alleged registration was prima facie invalid, where the alleged transfer had not received Ministerial approval, and where significant land rents remained outstanding.  There are no documents from the ROT showing that either the contract or transfer were received by them, or that the transfer was registered.  The ROT’s evidence was that they had no evidence of the transaction, and in fact had no records at all.  

Conclusion

77.	When all these circumstances are taken into account, together with the handwriting evidence, I am satisfied beyond reasonable doubt that the contract of sale and transfer documents were not signed by the deceased, and that his signature was forged by either the 5th Defendant, or by YT or WP in collusion with the 5th Defendant.

78.	In the absence of Ministerial approval of the transfer and satisfactory proof that outstanding land rents had been paid, registration could not have been validly made.  There is in fact no evidence that the documents were received by the ROT, or that the transfer was registered by him, at all.

79.	In the absence of either the original, or a copy of the Certificate of Title sealed by the Registrar of Titles, or identified by the Registrar of Titles as a genuine documents from its records, there was no evidence that title had been transferred to the 5th Defendant. 	

80.	In the absence of evidence from the 1st - 4th Defendants that they received the documents or registered the title, there is no basis for finding that they issued the title.  However, if the transfer of title was in fact registered, then the registration was based on fraudulent documents provided by or on behalf of the 5th Defendant. 

81.	The Plaintiff has therefore established actual fraud by the purported registered proprietor, within the meaning of S33 (1) (a) of the LRA.

82.	For these reasons, I make the following orders.

(a)		The purported decision of the 1st Defendant made on 14 May 	2013 to register transfer of ownership of the property on 	State Lease Volume 5 Folio 1171 Lot 14 Section 20 from 	Phillip Imbuni to Sauwan Rai, is removed into this court for 	the purpose of being quashed.

(b)		The said purported decision to register the transfer, is hereby 	quashed. 

(c)		A Declaration is granted that as at the date of his death, 	Philip Imbuni was the sole registered proprietor of the 	property on State Lease Volume 5 Folio 1171 Lot 14 Section 	20 Boroko.

(d)		The 5th Defendant is to pay the Plaintiff’s costs, and the 1st - 	4th Defendants’ are to pay their own costs.
__________________________________________________________
Ashurst Lawyers: Lawyers for the Plaintiff
Solicitor General: Lawyers for the First– Fourth Defendant
Kandawalyn Lawyers: Lawyers for the Fifth Defendant