SC1724

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 07 OF 2017
BETWEEN:
PNG BIBLE CHURCH INC
Appellant

AND:
CAROL MANDI
First Respondent

AND:
MINISTER FOR LANDS & PHYSICAL PLANNING
Second Respondent

AND:
NATIONAL HOUSING CORPORATION
Third Respondent

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent
Waigani: Kandakasi, Toliken & Bona JJ.
2018:	25th and 26th June
31st October

REAL PROPERTY - State Land – Land granted to National Housing Corporation – Particular allotments – Transfer to private individuals or incorporated entities -  Process for such transfers - Correct authority to deal with such land - Whether Lands Department or National Housing Corporation? – Gazettal and transfer of land outside process provided for under the National Housing Corporation Act – Constructive and real fraud – Transfer declared null and void – Transfer and registration to be cancelled and set aside – Title and property re-vested in the National Housing Corporation – National Housing Corporation to deal with the land in accordance with the process under its Act as between itself and the appellant.

PRACTICE & PROCEDURE – State land owned by National Housing Corporation – Process for dealing with National Housing Corporation land – Fundamental breach of – Issue not presented and considered by the trial judge – Trial judge’s decision arrived at in ignorance of – Beneficiary of trial court’s decision not meaningfully participating in the appeal and opposing reliefs sought – Only party responding to the appeal supporting the appeal and the reliefs sought – Appeal upheld – Title restored to the National Housing Corporation – Sections 37 – 39, 65 of the National Housing Corporation Act 1990 and ss.111 and 113 of the Lands Act 1996.  

Papua New Guinea Cases Cited:

 Pius Tikili v. Home Base Real Estate Ltd (2017) SC1563
Paru Aihi v. Peter Isoaimo (2013) SC1276
Rimbunan Hijau(PNG) Ltd v. Ina Enei (2017) SC1605
PNG Deep Sea Fishing Ltd v. Luke Critton (2010) SC 1126
Emas Estate Development Pty Ltd v. John Mea & Ors [1993] PNGLR 215

Counsel:

Ms. C. Kot, for the Appellant
Mr. A. Luke, for the Third Respondent

31st October, 2018 
1.	BY THE COURT:	On 26th June 2018, we delivered the Court’s decision with the reasons for the decision given verbally.  This is a written version of that decision and its reasons.

2.	PNG Bible Church Inc. (the Church) is appealing against a National Court decision which dismissed its proceedings in the National Court and ordered one of its pastors occupying a residential property described as Volume 15, Folio 84, Allotment 13, Section 69, Goroka, Eastern Highlands Province (the property), located within the Goroka township to vacate.  Carol Mandi, the First Respondent was a pastor of the Church and the Church authorised him to occupy the property and take all steps necessary to purchase and have the title to the property transferred to the Church.  Against that, Mr. Mandi had the property transferred and registered in his name.  The Church and the NHC submitted that the transfer was fraudulent in that the transfer was done without either of their knowledge and consent or approval.  They also submitted that the transfer was in breach of ss. 37 – 39 and 65 of National Housing Corporation Act 1990 (NHC Act).  These provisions were not drawn to and therefore not considered by the learned trial judge. 

3.	Despite being served with the notice of appeal and all other documents including the notice of hearing of the appeal, Mr. Mandi failed to take any meaningful steps against the appeal and has failed to appear at the hearing.  The NHC was the only respondent that attended the hearing.  At the hearing, the NHC supported the Church in the appeal and consented to the reliefs sought in the appeal. 

Relevant Issues

4.	Gathering from the parties’ arguments and the notice of appeal there are two main issues for this Court to consider and determine.  They are:

(1)	Did the Church establish by appropriate evidence its claim of fraud against Carol Mandi and the trial judge erroneously dismissed the claim?
(2)	Are the NHC and the Church entitled to raise in the appeal issues not previously raised at the trial level? 

Issue 1 - Did the Appellant Establish its Claim Based on Fraud?

3.	The Church’s claim in the National Court was by a writ of summons. In its statement of claim the Church claimed that Mr. Mandi fraudulently had the title to the property transferred to himself.  According to the evidence the Church adduced at the trial, Mr. Mandi was a pastor in the employ of the Church in the period 1984 to 1992. The Church decided to have a mission established in Goroka.  Straight upon Mr. Mandi’s graduation from the Tambul Bible College, the Church decided to task him to take charge of establishing a mission in Goroka.   That was Mr. Mandi’s only form of employment.  His salaries came from offerings collected from the church members and allowances provided by the Church.  One of Mr. Mandi’s tasks was to look for land for the Church to build a house to accommodate its pastors in Goroka, starting with him.  A Mr. Dick Tambua who is the chair of the board of directors of the Church assisted Mr. Mandi with this task.  

4.	Eventually, Mr. Mandi successfully secured the property.  The Church fully funded Mr. Mandi thinking he was acting in the best interest of the Church to help purchase and secure the property for the Church.  In 1992 when the Church decided to have Mr. Mandi transferred to Kainantu and he refused to take the transfer saying it was not his calling.   Consequently, the Church asked him to vacate the property to make way for another Pastor, a Pastor Timothy Asi who later moved into the property. Before leaving the property, Mr. Mandi organised several youths to occupy the property.  This required the Church to remove the youths and get Pastor Timothy Asi into the property.  Pastor Asi occupied the property from 1992 until 2005 when a Pastor Ian Rami replaced him.  

5.	In 2005, Mr. Mandi went to the District Court and instituted summary ejectment proceedings.  That proceeding got struck out because by that time, he did not have any title.  That was not the end of the matter.  In 2009, Mr. Mandi issued District Court proceedings again seeking to evict the Church from the property.  By this time, it became clearer to the Church that, Mr. Mandi had acquired title.  The transfer and registration of the title to the property in Mr. Mandi’s name did not have the approval and consent of NHC, nor was it by any contract of sale between the NHC and him.  Upon discovering this, the Church issued proceedings WS No. 1016 of 2009.  After a trial, the National Court sitting in Goroka, per Neil J., dismissed the Churches claim and ordered the Church to vacate the property.

6.	The learned trial Judge reasoned that:

“The First Defendant found there was delay in obtaining title to the property, so he went to Port Moresby to find out what had been done in this regard. He was informed to make an application under the Land Act. He did this and a Notice under section 45 of the Act, dated 10 September 2004 was placed in the Government Gazette as to extinguishing all rights of the NHC to that property.

The property was put up for tender/lease and a notice was put in Government Gazette G138, published on 13th July 2006.…

It would seem that the Plaintiff made no further follow up of the NHC after 1993. By then it was clear to the Plaintiff that the First Defendant [Mr. Mandi] wanted the title. The matter was no longer one of the First Defendant being an agent or employee of the Plaintiff. Instead it was a contest between the parties as to acquiring title.

The Plaintiff did not tender in response to the gazettal Notice of 13th July 2006. On the other hand, the First Defendant was proactive in resolving the title and went to Port Moresby to find out how to do this. He pursued the tender process though the money paid to Bane and the NHC was lost when the NHC title was extinguished and the land was put up for tender.”

7.	The evidence regarding gazettal referred to in the learned trial judge’s reasons for judgment came from Mr. Mandi.  There was no evidence of the gazettal being published in the normal way. Instead, it is clear there was a closed tender which meant only those who published the gazettal and Mr. Mandi knew about the gazettal. Hence, neither the Church nor the NHC were aware of that gazettal. Consequently, it was not surprising that only Mr. Mandi responded to the gazettal, applied for the allocation of the land to himself and that was done.  However, there was neither any evidence nor any submission from Mr. Mandi explaining how all these was possible without any direct involvement of the NHC who had the title to the property at the first instance.  At the hearing of the appeal the Court raised the question of how was the gazettal and the eventual allocation of the property to Mr. Mandi possible without the NHC’s direct involvement.  Counsel for the Church was not able to answer that question, but counsel appearing for the NHC, Mr. A. Luke was able to.

9.	The NHC through counsel pointed to the provisions of ss. 111 and 113 of the Lands Act 1996 and ss. 37 to 39 and 65 of the NHC Act.  Counsel for the NHC explained that a grant under s. 113 of the Lands Act is usually in Portions and in the form of an Urban Development License. Once such a grant is made, the NHC would undertake survey’s and produce a plan with sections and individual allotments.  The individual allotments will then see houses constructed on them and other amenities and improvements brought upon the land and have them leased to approved tenants, both natural and legal persons on economic terms or rents.   This would be under s. 35 of the NHC Act.  Sales of dwelling or residential properties are governed by s. 37.  This provision reads:

“37.	Sale of dwellings.
Subject to this Division, the Corporation may sell a dwelling vested in it to—
(a)	an eligible person; or
(b)	an approved applicant; or
(c)	a person who exercises the option offered to him under Section 38 (1).

10.	The option under s. 37 (c) is governed by s. 38 which reads:

38.	Options to purchase.
(1)	After a tenancy agreement has been in force for two years between the Corporation and a tenant, the Corporation may, in its discretion, offer to—
(a)	the tenant; or
(b)	the spouse, widow or widower of the tenant; or
(c)	the tenant and his spouse as joint tenants; or
(d)	the tenant and his next of kin,
an option to purchase the dwelling the subject of the agreement at a purchase price specified in the option, subject to the conditions imposed by this Division.
…

(4)	A contract of sale under this section may provide—
(a)	for the outright purchase; or
(b)	for the payment of the purchase price by instalments; or
(c)	for the payment of the purchase price to be secured—
(i)	by mortgage, in the prescribed form, over the property in respect of which the advance is made; or
(ii)	by any other security approved by the Corporation.”

11.	By virtue of ss. 40 and 41 of the NHC Act, the NHC would determine the price at which land or a property under its control would be sold.  That decision would of course, be made by its proper and correct authority being the Board and acted upon by the management.  

12.	Grant of portions of land to the NHC by the State is governed by Part XI, ss. 111 to 118 of the Land Act.  Section 112 specifically states that the provisions of ss.70, 71, 74, 75, 84 and 95 of the Act does not apply to a land granted to the NHC. Sections 70, 71, 74, 75 concern the process of applying for and obtaining a State Lease over a portion of State land from the State through the public tender process.  The remaining provisions concern improvements on any State land, payment for such improvement and insurance whilst pending payment for any improvements.  The existence and intend of these provisions is understandable.  Any land granted to the NHC comes under the ownership, controlled and management by the NHC both in terms of improving, renting, mortgaging or selling and transfer of the whole or parts of land that are under its ownership.  This is the case, to the exclusion of the Lands Department, except only to register any transactions on such land as approved and consented to by the NHC.  Given that, s. 65 of the NHC Act clear states:

“65.	Restriction of transfer, etc.
Where, without the consent in writing of the Corporation, a person purports to—
(a)	sell or contract to sell; or
(b)	mortgage; or
(c)	lease or sub-lease; or
(d)	transfer; or
(e)	assign,
any property in which the Corporation has an interest under this Part, the sale, contract, mortgage, lease, sub-lease, transfer of assignment is void and of no effect.”

13.	In the case before us, the relevant transcript does not bear any witness to these important provisions of the Lands and the NHC Acts being drawn to the attention of the learned trial Judge.   Also, there is no record of the learned trial judge giving any consideration and thought to the fact that the land was initially a NHC property and there had to be an inquiry or consideration of the relevant provisions of the NHC Act as well as those of the Lands Act before treating the case before him as a fight over an ordinary State Lease on State land.  This was a special case because of the subject property was by the relevant legislative provisions and the undisputed facts, out of the State, especially, the Lands Department’s control.   Instead, the property was at all relevant times, under the ownership and control of the NHC.  If the learned trial Judge considered these provisions and the correct status of the property, it would have come across the provisions we just referred to and would have come to a different conclusion than the one he arrived at.  This should not and does not adversely reflect against the learned trial Judge but the counsel who appeared before his honour.  It was counsel’s duty to draw to the Court’s attention all relevant and applicable law.  That includes any applicable statutory or case law or both.  Counsel appearing at the trial in this case obviously failed their respective clients and the trial Court.

14.	Additionally, we note with interest that the learned trial Judge found Mr. Mandi guilty of deceitful conduct.  Relevantly, his honour found at page 3 of his judgment and page 150 of the Appeal Book:

“In regard to the K300, the explanation of the First Respondent that it was his money does not ring true as the receipt was made out to the Lae Christian School.  The Plaintiff’s evidence that costs of improvements was borne by the Plaintiff is to be believed as the Plaintiff through its finances was able to pay that whereas the First Defendant only had church offerings as his source of income and limited financial resources. While the many names of the Plaintiff [wrongly referred to – it should be the First Defendant] look suspicious there is little that can take that aspect further.  The way the declaration was signed and the spelling of the surname of David “Barny” is also suspicious. 

However, while the conduct of the Plaintiff [should be the First Defendant] may well be deceit, the conduct was in respect of matters involving the NHC and not the issue of the State Lease.”

15.	On these findings, the learned trial Judge had before him Mr. Mandi as a person who conducted himself in a manner that was deceitful.  This person provided no explanation as to how the property which was in the control of the NHC got reverted to the Lands Department and how the Lands Department could deal with the land in the way its servants or agents did.  All that the learned trial Judge had to do and now by this Court is to closely examine the terms of the gazettal dated 23rd September 2004 which extinguished the NHC’s interest in the property.  A copy of that gazettal is at page 79 of the appeal book.  The then Secretary of Lands used s. 77 of the Land Act to extinguish NHC interest in the property.  As we already noted, this gazettal was not widely published to the public at large contrary to the requirements of s. 68 of the Lands Act.  

16.	Most interestingly, s. 77 reads:

“77.	Extinguishment of granted application.
The Departmental Head may, by notice in the National Gazette, extinguish the right of a grant of a State lease—
(a)	if a duly signed Lease Acceptance Form does not reach the Departmental Head or other officer authorized to receive such written acceptances within 28 days of the publication of the notice under Section 75 in the National Gazette, or such later date as is stated in the Letter of Grant; or
(b)	if the grantee fails to pay all amounts of money specified in the Letter of Grant within the required time.”  	

17.	This provision is applicable only if a successful bidder for a grant of a State Lease fails to communicate his or her acceptance of the terms of any such grant within 28 days from a publication of a notice under s.75 of any such grant.  As we earlier noted s. 75 is one of those provisions excluded from applying to a grant of any State land to the NHC. Obviously in this case, a wrong process and basis was used to purportedly extinguishing the NHC’s interest in the property.  This in our respectful view was a continuation of deceitful conduct, a conduct the learned trial Judge found Mr. Mandi was guilty of. At no point the NHC’s consent or approval was ever sought and obtained which culminated in the grant of the title to Mr. Mandi.

18.	It is now well-established law in PNG that a failure to follow the process provided under the Land Act when dealing with State land amounts to fraud capable of undoing any title secured outside the statutorily prescribed process.  The decision of the Supreme Court, drawn to our attention by learned counsel for the Church in Pius Tikili v Home Base Real Estate Ltd (2017) SC1563 is a case on point.  There the Court comprising of Cannings, Yagi and Neill JJ., said:

“His Honour, we consider, should have addressed the meaning of “fraud” in Section 33(1)(a) of the Land Registration Act more rigorously. There is now a strong line of Supreme Court decisions that have substantially qualified the concept of indefeasibility of registered title set out Mudge v Secretary for Lands [1985] PNGLR 387. Cases such as Emas Estate Development Pty Ltd v John Mea [1993] PNGLR 215, PNG Deep Sea Fishing Ltd v Luke Critten (2010) SC1126 and Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120 support the proposition that in many situations it will not be appropriate to insist on proof of actual fraud before the National Court considers cancelling the registered proprietor’s title. It will be sufficient if constructive or equitable fraud is proven. Constructive fraud exists where the circumstances of a transfer of title are so unsatisfactory, irregular or unlawful, it is tantamount to fraud, warranting the setting aside of registration of title.”

19.	In this case, the due process under the relevant provisions of the NHC Act and the Lands Act were not followed to have the NHC’s interest in the property extinguished.  The NHC was yet to complete its process under its Act when the invalid gazettal came about and hijacked the process resulting in the property being granted to Mr. Mandi and title registered in his name.  The National Court found him guilty of deceitful conduct when dealing with the NHC. At the relevant time he was a pastor employed by the Church and was for all practical purposes representing the interest of the Church.  Then after he ceased to be an employee and pastor of the Church for reasons only known to Mr. Mandi himself and those who facilitated the transfer of the property to him used a process that was clearly contrary to the prescribed process to first extinguish the NHC and the Church’s interest in the property and secondly have the property and its titled transfered to Mr. Mandi.   In these circumstances, we find that Mr. Mandi and those within the Lands Department who worked with him committed acts of fraud to enable him to secure the property and its title.  Consequentially, we find the title secured and registered in the name of Carol Mandi to the property the subject of these proceeding is invalid and is of no force and effect.

20.	On these facts we find the Appellant did establish its claim based in fraud but the learned trial judge erred in finding to the contrary and dismissing the claim.  We add that, the onus was on Mr. Mandi to demonstrate by appropriate evidence that he followed all of the prescribed statutory processes under the NHC Act and the Land Act to have the property and title vested in him.  This he failed to do.

Issue 2 – Raising an issue not raised at the trial?

21.	Turning now to the issue of raising an issue for the first time at the appellate level, we note the law is well settled.  The decision of the Supreme Court in Paru Aihi v. Peter Isoaimo (2013) SC1276, per Kandakasi J with Hartshorn and Yagi JJ., agreeing stated the law in these terms:

 “This Court has been consistently maintaining this position in its subsequent decisions.  This includes the decisions in Alfred Alan Daniel v Pak Domoi Ltd, … per Injia CJ, Yagi & Makail JJ., and Stettin Bay Lumber Company Ltd v S. K. Goh & Ors,…per Kirriwom, Mogish & Hartshorn JJ. More importantly it includes the five (5) member bench decision in the Isaac Lupari case. There in the separate decisions of Gabi and Hartshorn JJ., with whom two other members of the Court Salika DCJ. and Batari J., agreed and myself not giving an opinion, endorsed the James Pupune line of cases. This position has been also maintained even in criminal cases. Cases representing this line of authorities include the decisions in Jimmy Ono v. The State,…per Hinchliffe, Sevua, and Kandakasi, JJ.; the Kepa Wanege and Masolyau Piakali  cases and the recent decision in Denden Tom & Anor v. The State,…per Salika, DCJ., Kandakasi and Gabi, JJ. The last case reiterated the position in these terms:   

‘The law is very clear that, an appellant cannot raise an issue on appeal for the first time without first raising the issue in the Court below.  The Supreme Court in its most recent decision in Chief Collector of Taxes v. Bougainville Copper Limited and Bougainville Copper Limited v. Chief Collector of Taxes … affirmed that principle.’

22.	In the same case, the Supreme Court discussed the issue of the Supreme Court departing from its earlier decisions. That started with the provisions of Schedule 2.9 (1) of the Constitution.  The Court then stated the relevant principles of law in these terms:

“As clearly stipulated in Schedule 2.9 (1) of the Constitution, this Court is not bound by its earlier decisions.  However, that does not mean that, the Court can readily and easily depart from its earlier decisions as and when it wants to or feels like.  Instead, departures are permissible for good reason and in keeping with the relevant principles governing departures.”

23.	The Court went into a detailed consideration and discussion of the relevant cases on point especially those discussing and bringing out the relevant principles governing departures from earlier decisions of the Supreme Court.  It then summarized the principles as follows:

“A careful consideration of the above authorities makes it clear that:

(a)	the Supreme Court is not bound by its own earlier decisions;

(b)	but in the interest of providing certainty and consistency in the law for the society’s guidance and for the avoidance of chaos and disorder, the Court cannot readily and easily depart for its earlier decision;

(c)	departures within a short space of time is undesirable and should not be encouraged; and

(d)	departures are permissible only in exceptional circumstances where:

(i)	the earlier decision clearly misinterpreted, misconceived, mistook or misunderstood the law which requires correction;

(ii)	the law pronounced or stated in the earlier decision is no longer appropriate and applicable to the current prevailing circumstances and needs of the country; and 

(iii)	as a matter of practice, the Chief Justice must be part of a Court comprising of 5 Judges which may decide to depart from an earlier decision.”

24.	We agree with these statements of the relevant principles of law. In so doing, we note that, these principles have been developed and applied out of cases in which the parties have contested each of the issues.  This is not the case here.  The issue of the procedures under the NHC Act combined with those under the relevant provisions of the Land Act have been raised by this Court at the hearing of the appeal.  The issue was inherent in the cause of action itself.  All the parties to the proceeding and the Court had a duty to raise and consider the relevant and applicable statutory provisions before arriving at a final decision on the matter.  This was not done.  That constituted an obvious omission and serious oversight by all the parties and the Court which amounts to a serious error which must be corrected in the interest of doing justice on the substantive merits of the case.  The party in whose favour the National Court judgment was given, Mr. Mandi, failed for reasons only known to him to appear in Court on the hearing of the appeal and address the Court on the issue.  After securing the judgment in his favour in the National Court, Mr. Mandi failed to take any meaningful step to defend the National Court judgment which was being challenged by this appeal.  Of all failures, Mr. Mandi ultimately failed to appear at the hearing of the appeal and argue against the appeal. 

25.	As already noted, Mr. Mandi in collaboration with persons in the Lands Department committed a serious fraud against the NHC and the Church which took steps to acquire the property, the subject of this appeal from the NHC.  Fraud is a crime. When such a criminal conduct leading to serious consequences against the victims of such a crime comes to the attention of the Court, the Court cannot ignore it.  The Court must deal with the issue and come to a decision that is sound in law and as may be supported by any relevant evidence or lack thereof on point.  It is trite law that no person can be allowed to gain from his or her own crime or illegal conduct. The recent decision of the Supreme Court in Rimbunan Hijau (PNG) Ltd v. Ina Enei (2017) SC1605, restated the law in these terms:

“Secondly, we note that, none of the English cases as followed and applied in PNG and elsewhere appear to discuss and take into account the principle that a person cannot be allowed to gain from his or her illegal or criminal conduct. A number of Supreme and National Court decisions in PNG have spoken of and or applied this principle in the context of other settings.  One of the cases on point is this Court’s decision in PNG Deep Sea Fishing Ltd v. Luke Critten…. That was in the context of two different views on upsetting a title to land on the basis of fraud as represented by the decisions in Emas Estate Development Pty Ltd v. John Mea & Ors… and Koitachi Ltd v. Walter Schnaubelt… on the one side and Mudge v. Secretary for Lands… and cases that follow it on the other side.”   

26.	The Supreme Court noted that its earlier decision in PNG Deep Sea Fishing Ltd v. Luke Critten (2010) SC1126, tried to make sense of these deferent positions in the following way:

“The decision in Mudge and Kotachi could work well with one complimenting the other. Where title in certain property has passed a number of hands and or a considerable period of time has passed and is hard to trace back what has happened, the need to bring fraud home to the eventual title holder is sensible and could apply. However, where title in a property has not passed hands or the circumstances leading to either grant or transfer of title can easily be traced and established, the requirement to bring fraud as determined by Mudge and Koitachi home to the eventual title holder may be inappropriate.  The title holder knowing this position of the law may well have deliberately or by his conduct facilitated a breach or otherwise a failure to follow all relevant processes and requirements for a proper, fair, and transparent grant or transfer of title over State Leases, which may fall short of fraud as held by Mudge and Koitachi to gain from his own illegal, improper, unfair and questionable conduct.  This would no doubt run into conflict with well-established principles of law which say that, no one can be permitted to gain from his or her own illegal conduct. Against such possibilities, Emas does make sense.

27.	Eventually the Court decided to endorse the decision in Emas Estate Development Pty Ltd v. John Mea & Ors [1993] PNGLR 215.  In so doing it reasoned as follows:

“In our view, the principle enunciated in Emas is a necessary safe guard against the abuse of the process prescribed for the proper, fair, transparent and legal allocation of State Leases.  In a jurisdiction like PNG where there is ready abused of legislatively prescribed process particularly over a much sought after resource like land, and other regulatory requirements for safety and well fare of the nation, the decision in Emas  becomes very important.  The situation in PNG is not the same as in England, Australia or elsewhere, where the state owns most of the land and there is a large supply of land.  Also, unlike Australia and England, there is in PNG, a ready resort to abusing legislatively prescribed process particularly in relation to land as much as other important resources.  Under Mudge, people who either deliberately or by their own conduct chose not to follow the proper process laid for applying for and being granted State Leases and eventual registration to gain from their own illegal and improper conduct or failures….  Hence it makes sense to qualify the application of the decision in Mudge and those following.”

28.	In this case, as already noted, there is a complete lack of evidence of Mr. Mandi going through the correct statutorily prescribed processes under the NHC Act and the Land Act to seek and secure the transfer of the property to him.   This suggests, Mr. Mandi did not follow the correct process to have the NHC interest in the property extinguished and subsequently have the property transferred and vested in him.  We take his none appearance and entering no contest on the appeal to mean a deliberate decision to accept there is basis for the appeal and the reliefs sought can be granted.   In the circumstances, we are of the view that, the injustice this has brought upon the Church and the NHC can only be corrected by reversal of what had happened against them and restore the parties to where they were before the fraudulent actions of Mr. Mandi.  Accordingly, we make the following orders:

(1)	The Appeal is upheld;

(2) 	The decision and orders of the National Court in WS 1016 of 2009 delivered on 21st November 2016 is quashed and set aside;

(3)	The transfer and registration of the name Carol Mandi as the transferee/owner of the State Lease described as Volume 15, Folio 84, Allotment 69, Goroka, Eastern Highlands (the property) be struck off.

(3)	The title to the property be restored to the National Housing Corporation forthwith.

(4)	The National Housing Corporation and the PNG Bible Church Inc., shall be at liberty to continue and complete their negotiations for the sale and transfer of the property to Church.

(5)	Costs of the Appeal are awarded against the Respondents except for the Third Respondent.
 
_______________________________________________________________
Avross Lawyers:			Lawyers for the Appellant 
NHC In-House Lawyers: 	Lawyer for the Respondents