SC2282

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 96 OF 2017

BETWEEN:
ELISHA TIMOTHY
First Appellant 

AND:
ROMILY KILA PAT 
Secretary for lands and physical planning
Second Appellant

AND:
BENJAMIN SAMSON
in his capacity as Acting Registrar of Titles
Third Appellant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Appellant

AND:
JOSHINTA TIMOTHY
Respondent

Waigani: Batari, Logan and Anis JJ 
2022: 23rd February and 1st September

LAND LAW – meaning of fraud under s 33(1)(a) of the Land Registration Act 1981 – divergence in Supreme Court authority – whether actual or constructive fraud must be shown – held: “fraud” in s 33(1)(a) of the Land Registration Act 1981 means actual, not constructive or equitable, fraud

SUPREME COURT – principles of stare decisis – circumstances where Supreme Court may overrule previous authority – where competing lines of authority developed over fraud exception to indefeasibility – where Papua New Guinea, English and other case law from other common law jurisdictions held that the meaning of fraud in Torrens system requires actual, not constructive or equitable, fraud – where line of contrary authority developed in Papua New Guinea holding that constructive or equitable fraud amounted to an exception to indefeasibility – authorities allowing for constructive or equitable fraud overruled 

EVIDENCE – allegations of fraud – where primary judge refrained from making finding of actual fraud – where primary judge found allegation of equitable or constructive fraud made out on the basis that appellant had obtained indefeasible title with notice of existing interest – where trial judge correctly applied standard of proof described in Yagama v Uguro [2018] PGSC 24; SC1682 – ground of appeal dismissed

LAND LAW – powers of Registrar of Titles – power to cancel or correct instrument – where the powers conferred by ss ss 161(1)(a) and 161(1)(b) of the Land Registration Act 1981 are mutually exclusive – held: the power to correct the register in s 161(1)(b) is limited to obvious clerical and administrative errors and does not permit the Registrar to adjudicate competing claims 

CONSTITUTIONAL LAW – protection from unjust depravation of property – Constitution ss 53-54 – where the Registrar of Titles purports to cancel a registered proprietor’s title – where cancellation falls within definition of “acquisition” under s 53 – where title transferred to person who is not a bona fide purchaser for value – held: where title is unlawfully cancelled and transferred to a third party, and that third party was not a bona fide purchaser for value, s 53 of the Constitution prevents that third party from obtaining indefeasible title    

Facts:

Joshinta Timothy (Joshinta) was the holder of a 99-year lease which had been issued under the Land Act 1962 (the lease) in respect of land at Hohola of the National Capital District (the premises). Joshinta had became the registered proprietor of the premises on 19 April 2005 as joint tenants with her adopted mother, Lyia Laim (Lyia), the first wife of Timothy Pipi (Timothy). Timothy had been the registered proprietor prior to the transfer of the lease to Joshinta and Lyia. 

Lyia died in 2011. Timothy subsequently remarried three further times. The third of those subsequent marriages bore a child – Joshua Timothy (Joshua). Timothy’s fourth and final wife was Elisha Timothy (Elisha). By 2014, Timothy was frail and bedridden. He was reliant on others for his care. 

On 14 April and 15 December 2014, the office of the Registrar of Titles (Registrar) received two letters purportedly authored by Timothy. Both letters were typed in English. The first letter purported to explain that Timothy had made an error in 2005. Timothy’s true intention was said to have been to transfer the lease to Lyia and Joshua – not Joshinta. In the second letter, Timothy purported to request the Registrar transfer the lease to Elisha, as Joshua remained a minor. Those letters contained significant errors. The year of Lyia’s death was given as 2012. Lyia in fact died in 2011. The letters also proceeded on the misapprehension that Joshua remained registered proprietor of the premises. 

Acting on those letters, the Registrar purported to correct the lease pursuant to s161 of the Land Registration Act 1981 (the Act) by cancelling the 2005 entry that recorded the transfer of the lease to Joshinta and Lyia on the basis that it was entered in error. The Registrar then recorded: 

a.	a transfer of the lease to Lyia and Joshua;
b.	the death of Lyia, which in turn resulted in Joshua becoming the sale registered proprietor of the premises; and 
c.	a transfer of the lease from Joshua to Elisha. 
  
On the force of the entries that now appeared in the register, Elisha instituted ejectment proceedings in the District Court. Although Joshinta was named as a defendant to that proceeding, she first became aware of the proceeding and that she was no longer the registered proprietor of the premises on 28 August 2015, when members of the Royal Papua New Guinea Constabulary arrived to eject Joshinta and her family from the premises. 

Joshinta commenced a proceeding in the National Court against Elisha and various state parties, including the Registrar. In that proceeding, Joshinta claimed that her title had been cancelled in circumstances which were contrary to the rules of natural justice and that the procedure in s 160 of the Act had not been followed. The National Court ultimately found that the transfer of the lease amounted to constructive (not actual) fraud and the cancellation of Joshinta’s registered interest was contrary to the rules of natural justice and s 161 of the Land Registration Act 1981. In doing so, the National Court found that Elisha was complicit in procuring the Registrar to act in a way that led to Elisha becoming registered proprietor and Joshinta’s prior interest being cancelled. 

Elisha and the State parties appealed the National Court’s decision to the Supreme Court. At the hearing of the appeal the State parties indicated that they would abide the order of the Court. Elisha became the sole contradictor to the appeal. 

After reserving judgment on the appeal, the Court identified persuasive authority from the High Court of Kenya. Parties were referred to that judgment and invited to provide further submissions on the ramifications, if any, of s 53 Constitution of the Independent State of Papua New Guinea. 

Held:

1.	[Per Batari and Logan JJ]: Section 33(1)(a) of the Land Registration Act 1981 provides a limited exception to indefeasibility of title in circumstances where the relevant registration was affected by fraud. The fraud concerned must be actual fraud by the registered proprietor or their agent. It cannot be constructive or equitable fraud: Mudge v The Secretary for Lands [1985] PNGLR 387; Keindip v The State of Papua New Guinea [1993] PNGLR 28; Timano v Timano [1993] PNGLR 334; Mamun Investments v Ponda [1995] PNGLR 1; Kiso v Otoa [2013] PGSC 3; SC1222; Paga No 36 Ltd v Eleadona [2018] PGSC 17; SC1671; Soto v Our Real Estate Ltd [2018] PGSC 55; SC1701; Asset Co Ltd v Mere Roihi [1905] AC 176; Frazer v Walker [1976] 1 AC 569; Waimiha Sawmilling Co Ltd (in liq) v Waiane Timber Co Ltd [1926] AC 101; Loke Yew v Port Swettenham Rubber Co Ltd [1913] AC 491; Breskvar v Wall (1971) 126 CLR 376; Wicks v Bennett (1921) 30 CLR 80 applied. Emas Estate Development Pty Ltd v Mea [1993] PNGLR 21; Tikili v Home Base Real Estate Ltd [2017] PGSC 1; SC1563; Jaro Investment Ltd v Ane [2022] PGSC 5; SC2192; Camilus v Mota [2022] PGSC 17; SC2210 overruled.

2.	[Per Batari and Logan JJ]: The Supreme Court is not bound by its own authority and, in the proper case, a three member court may overrule an earlier judgment of a three member court: SCR No 2 of 1992: Re The Leadership Code [1992] PNGLR 332: SC440. 

3.	[Per Batari and Logan JJ]: Where an allegation of fraud, whether actual or equitable, has been made in a civil case, that conduct will not be proved by inexact proofs or indirect references: Yagama v Uguro [2018] PGSC 24; SC1682; Berkefeld v Berkefeld [1953] PGSC 9; Briginshaw v Briginshaw (1938) 60 CLR 336 applied. 

4.	[Per Batari and Logan JJ, Anis J agreeing in part]: The powers of the Registrar of Titles under ss 161(1)(a) and 161(1)(b) of the Land Registration Act 1981 are mutually exclusive: Jaro Investment Ltd v Ane [2022] PGSC 5; SC2192 referred to. The power to correct the register in s 161(1)(b) is limited to obvious clerical and administrative errors. In exercising that function, the Registrar should not adjudicate competing claims to land: Frazer v Walker [1976] 1 AC 569; Re McCarthy and Collins (1901) 19 NZLR 545; District Land Registrar v Thompson [1922] NZLR 627; Re Jobson and the Real Property Act 1900 (1950) 68 WN (NSW) 23; State Bank of New South Wales v Berowra Waters Holdings Pty Ltd (1988) 4 NSWLR 398 applied.   

5.	[Per Batari and Logan JJ]: The unlawful cancellation of a registered proprietor’s interest in land under s 161(1)(b) of the Land Registration Act 1981 is an unlawful acquisition forbidden by s 53 of the Constitution. Where the cancellation is coupled with a grant and acceptance of the land to a third party, and that third party was not a bona fide purchaser for value, s 53 of the Constitution prevents that third party from obtaining indefeasible title: Shimoni Resort v Registrar of Titles [2016] eKLR referred to.

6.	[Per Anis J]: The meaning of the term “fraud” under s 33(1)(a) of the Land Registration Act 1981 has been answered two-fold. There is a narrow view or traditional view is that “fraud” means actual fraud. The wider view is that “fraud” includes constructive fraud and proof of actual fraud is not required: Lina Peyape and Ors v Peyapi Waiya [2021] PGSC 32; SC2109 referred to. 

7.	[Per Anis J]: The Land Registration Act 1981 does not distinguish between actual and constructive fraud. In the absence of legislative intervention it is sufficient to show constructive fraud against or linked to the current registered proprietor for the purposes of s 33(1)(a) of the Land Registration Act 1981: John Wauwe v National Housing Corporation and Ors [2022] PGNC 2; N9382; Berr v Yango (No 2) [2015] PGNC 4; N5859; Muku v Yama [2019] PGNC 334; N7948 referred to. 

8.	[Per Anis J]: Whether actual or constructive fraud is to be proved will be a matter for the National Court to assess according to the circumstances of the case before it.  

Cases Cited:
Papua New Guinean Cases

Amaiu v Yalbees [2020] PGSC 133; SC2046
Camilus v Mota [2022] PGSC 17; SC2210
Berkefeld v Berkefeld [1953] PGSC 9
Berr v Yango (No 2) [2015] PGNC 4; N5859
Emas Estate Development Pty Ltd v Mea [1993] PNGLR 21
Jaro Investment Ltd v Ane [2022] PGSC 5; SC2192
John Wauwe v National Housing Corporation and Ors [2022] PGNC 2; N9382
Keindip v The State of Papua New Guinea [1993] PNGLR 28
Kiso v Otoa [2013] PGSC 3; SC1222
Lina Peyape and Ors v Peyapi Waiya [2021] PGSC 32; SC2109
Mudge v The Secretary for Lands [1985] PNGLR 387
Mamun Investments v Ponda [1995] PNGLR 1
Muku v Yama [2019] PGNC 334; N7948
Paga No 36 Ltd v Eleadona [2018] PGSC 17; SC1671
Papua Club Inc v Nasaum Holdings Ltd [2004] PGNC 178; N2603
PNG Ready Mix Concrete Pty Ltd v The State [1981] PNGLR 396
Public Prosecutor v John Aia and Peter Pino [1978] PNGLR 224; SC132
Raina No 1 Ltd v Elisha [2015] PGNC 158; N6051
Raumai No 18 Ltd v Country Motors Ltd [2018] PGNC 592; N7952
SCR No 2 of 1992: Re The Leadership Code [1992] PNGLR 332; SC440
Soto v Our Real Estate Ltd [2018] PGSC 55; SC1701
Tikili v Home Base Real Estate Ltd [2017] PGSC 1; SC1563
Timano v Timano [1993] PNGLR 334
Timothy Alex Aipa v Samson & Ors [2012] PGNC 185; N4777 
Yagama v Uguro [2018] PGSC 24; SC1682

Overseas Cases

Assets Co Ltd v Mere Roihi [1905] AC 176
Breskvar v Wall (1971) 126 CLR 376
Briginshaw v Briginshaw (1938) 60 CLR 336
Commonwealth v State of New South Wales (1918) 25 CLR 325
District Land Registrar v Thompson [1922] NZLR 627
Frazer v Walker [1967] 1 AC 569
Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343
Loke Yew v Port Swettenham Rubber Co Ltd [1913] AC 491
Re Jobson and the Real Property Act 1900 (1950) 68 WN (NSW) 23
Re McCarthy and Collins (1901) 19 NZLR 545
Shimoni Resort v Registrar of Titles [2016] eKLR
State Bank of New South Wales v Berowra Waters Holdings Pty Ltd (1988) 4 NSWLR 398
The Custodian of Expropriated Property v Tedep (1964) 113 CLR 318
Waimiha Sawmilling Co Ltd (In liq) v Waiane Timber Co Ltd [1926] AC 101
Wicks v Bennett (1921) 30 CLR 80

Legislation Cited:
Papua New Guinean Legislations

Constitution of the Independent State of Papua New Guinea
Land Act 1962
Land Registration Act 1981

Overseas Legislations 

Real Property Act 1858 (SA)

Counsel:

Mr. J Kumura, for the First Appellant
Mr. R Uware, for the Second, Third and Fourth Appellants
Mr. J Lome, for the Respondent

1st September, 2022

1.	BATARI AND LOGAN JJ: On Friday, 28th August 2015, a truckload of armed members of the Royal Papua New Guinea Constabulary arrived at premises at Hohola in the National Capital District then occupied by the respondent, Ms Joshinta Timothy (Joshinta) and her family. Those premises are the subject of a residential lease for a term of 99 years issued in 1982 under the Land Act 1962. They are more particularly described as Section 307, Lot 68, Hohola, National Capital District (subject premises).

2.	The purpose of the police was to eject Joshinta and her family from the subject premises. They achieved their purpose that day. 

3.	Such action was unexpected by Joshinta. She was aware that the first appellant, Mrs Elisha Timothy (Elisha) had instituted ejectment proceedings in respect of the subject premises in the District Court naming her and other family members as defendants but not aware that any ejectment order had been made.

4.	Joshinta was adopted in 1992 by the late Timothy Pipi (Timothy) and his then and first wife, the late Lyia Laim (Lyia) as their daughter. Timothy and Lyia were unable to have children. Joshinta is the natural daughter of Lyia’s younger sister.
5.	Timothy was once the registered proprietor of the residential lease in respect of the subject land. The certificate of title in respect of that lease records that, on 19 April 2005, its registered proprietors became Joshinta and Lyia as joint tenants. Lyia died in 2011. By the time of the police action in 2015, Timothy had also died.

6.	In his declining years and after Lyia’s death, Elisha became Timothy’s fourth, and final, wife.

7.	In 2014, the following entries came to be recorded on the certificate of tile in respect of the residential lease of the subject land: 

a.	On 5 May 2014, at 09:02 am, on the basis of it appearing to the satisfaction of the Acting Registrar of Titles, an entry cancelling, purportedly pursuant to s 161 of the Land Registration Act 1981 (Land Registration Act), the 2005 entry recording that Joshinta and Lyia held the residential lease of the subject land as joint tenants on the basis that it was entered in error;
b.	On 5 May 2014, at 09:04 am, an entry recording the transfer, produced that day, of the residential lease to Lyia and Joshua Timothy (Joshua);
c.	On 5 May 2014, at 09:05 am, an entry recording the death of Lyia and that Joshua was now the sole proprietor of the residential lease;
d.	On 18 December 2014, at 01:04 pm, an entry recording a transfer of the residential leasehold to Elisha.
8.	Joshua is the son of Timothy and his third wife. In 2014, he had yet to attain the age of majority.

9.	Joshinta instituted proceedings in the National Court to which Elisha and various State parties, notably the Registrar of Titles (Registrar), were parties. She claimed a declaration that the cancellation in 2014 of her registered proprietorship of the residential lease was void, as were, consequentially, all later entries in 2014 up to and including that recording Elisha as the registered proprietor. She claimed that her title had been cancelled in contravention of the rules of natural justice, because the Registrar had not afforded her a prior opportunity to be heard. She also claimed that the procedures required by s 160 of the Land Registration Act had not been followed prior to the purported exercise of the power to cancel under s 161. She also pleaded various alleged violations of her constitutional rights.

10.	The case proceeded to trial in the National Court. 
11.	On 31 May 2017, for reasons which were delivered ex tempore by the learned primary judge following the conclusion of the trial that day, Joshinta secured the following orders from the court:

a.	a declaration that the purported cancellation of title in the residential lease that was registered on 5 May 2014 was null and void;
b.	a declaration that all subsequent transfers are null and void;
c.	an order that the Registrar of Titles take all necessary steps to ensure that Joshinta is restored as the sole registered proprietor of the residential lease in respect of the subject property;
d.	a declaration that, from the date of entry of the court’s orders (they were entered on 2 June 2017), Joshinta as the right of occupancy of the subject land and that Elisha and all other persons shall not occupy or enter that land without Joshinta’s consent;
e.	orders cancelling all interim orders; and
f.	an order for costs in her favour against the defendants.
12.	Elisha has appealed to this court against those orders. So, too, did the Registrar and other State parties. However, on the hearing of the appeal, were we informed that the Registrar and other State party respondents would abide the order of the Court. 

13.	Insofar as they are relevant at all, it is by no means easy to discern from the notice of appeal quite what was the error which allegedly affected the making of these orders.

14.	One ground alleged that the learned primary judge had failed to determine the legitimacy of, seemingly, Joshinta’s adoption. But this issue was irrelevant to whether, given that she and Lyia became registered proprietors in 2005, the Registrar had acted lawfully in cancelling Joshinta’s by then sole proprietorship of the residential lease in 2014.

15.	Another ground alleged that the orders were made in error, because the original, owner’s copy of the certificate of title in respect of the residential lease was always with Timothy. This ground was premised on a misunderstanding of s11(1) of the Land Registration Act, which gives paramountcy to the entries on the Registrar’s duplicate (once registered) of the certificate of title. That subsection provides:
11.	Certificate of title to be evidence.
(1)	The Registrar's duplicate of a certificate of title, when registered—
(a)	is evidence of the particulars it specifies; and
(b)	is conclusive evidence, in relation to the land it describes, that the person named in the certificate of title—
(i)	as seised of an estate in land; or
(ii)	as taking or otherwise entitled to an estate or interest in the land,
is seised of, possessed or entitled to that estate or interest, as the case may be; and
(c)	is conclusive evidence that the property comprised in the certificate of title is under this Act.
Further and in any event, the owner’s copy of the certificate of title to the residential lease, like that in the Registrar’s office, showed that Timothy had ceased to be the registered proprietor in 2005 when Lyia and Joshinta became the registered proprietors. That Timothy continued to hold the owner’s copy (if indeed he did, as opposed to it just being kept at the subject premises) is a distraction. Indeed, even if both the Registrar’s copy and the owner’s copy had been destroyed, that would not be destructive of title and other interests in respect of the residential lease created by registration, for the certificates are but evidentiary: The Custodian of Expropriated Property v Tedep (1964) 113 CLR 318.

16.	Insofar as any particularity was given to other grounds of appeal in the course of oral argument by counsel for Elisha on the hearing of the appeal, the errors which she alleged were that the learned primary judge ought to have concluded that the Registrar had, in the circumstances, exercised his power of cancellation pursuant to s 161 of the Land Registration Act lawfully and, further, that by virtue of s 33 of the Land Registration Act, Elisha, as registered proprietor, held indefeasible title subject only materially, to fraud, which meant actual, not constructive fraud. 

17.	Section 33(1) of the Land Registration Act provides, materially:

33.	Protection of registered proprietor.
(1)	The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except—
(a)	in the case of fraud; …
18.	Counsel for Elisha acknowledged that there were two different lines of authority in Papua New Guinea as to whether fraud as referred to in s 33(1)(a) of the Land Registration Act had to be either actual (as he contended) or constructive (as the learned primary judge had found) but cited none of these authorities, much less analysed them in submissions.

19.	Joshinta’s submissions adopted the reasoning of the learned primary judge but did so by additional reference to later supporting authority both in the National Court and in this court on the subject of the fraud exception to indefeasibility. Constructive fraud was sufficient, it was submitted.

20.	It is desirable first to detail the findings and related reasoning of the learned primary judge.

21.	The primary judge was not attracted to so much of Joshinta’s case as was based on an alleged breach of fundamental constitutional rights both because of want of particularity and identified parties. His Honour highlighted that, apart from the Registrar and the other State parties, only Elisha was named as a defendant.  

22.	That said, a requirement for the observance in the circumstances of this case of that element of the rules of natural justice constituted by the affording of an opportunity to be heard in respect of an identified, alleged and potentially adverse conclusion by an officer the Executive (here, the Registrar) did form part of his Honour’s reasoning.

23.	Thus, it cannot be said that fundamental constitutional rights did not feature in that reasoning, because the applicability of the rules of natural justice in the circumstances of this case flowed from the constitutionally entrenched requirement in s 59 of the Constitution of the Independent State of Papua New Guinea (Constitution):

59.	Principles of natural justice.
(1)	Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.
(2)	The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.

24.	Yet further, as will be seen, it may be possible, in the circumstances, having regard to overseas authority concerning other, similar constitutionally entrenched, fundamental, human rights and the conduct of the Registrar, who was and is a party, to uphold the orders made by the National Court on grounds other than his Honour’s conclusion that it was sufficient to establish constructive fraud to fall within the exception to indefeasibility.

25.	His Honour upheld claims made by Joshinta that:

a.	the transfer of the registered lease to Elisha in December 2014 was a constructive fraud on her; and

b.	the cancellation of Joshinta’s registered interest in the residential lease in May 2014 was contrary to the rules of natural justice and contrary to s 161 of the Land Registration Act.

26.	His Honour found that the Registrar had not just failed to give notice to Joshinta of a proposed cancellation of her registered interest but had made no genuine inquiry at all into the “genuineness of the intentions of Timothy” in relation to the transfer of the registered lease to Joshinta and Lyia in 2005. His Honour further concluded that the fact (as he found) that Joshinta had never had possession of the certificate of title for the registered lease was “essentially irrelevant”. 

27.	The evidence at trial included evidence from both Joshinta and her husband, Alan Lali (Alan) as to Timothy’s increasing ill-health shortly after Lyia’s death to the point where, by 2014, he was frail and usually bedridden, reliant on them for care and the obtaining and administration of medication. His hearing and eyesight were also failing. Alan expressed his amazement, based on his observations of Timothy, how Timothy could have attended at the office of the Registrar at Waigani on two occasions in 2014. Also in evidence before the primary judge was a power of attorney in favour of Alan, signed by Timothy in the presence of a witness and a lawyer and Commissioner for Oaths on 11 December 2013.

28.	The two occasions mentioned were occasions when letters purportedly signed by Timothy were received at the office of the Registrar. There was no clear evidence before the National Court as to how the Registrar came to be in possession of the two letters. It is conceivable that they were posted, rather than delivered by hand. The evidence from an officer of the Registrar’s office, which was, with respect, justifiably, criticised by the primary judge as adding little more than what was apparent on the face of the Registrar’s copy of the certificate of title, did not disclose by what means the Registrar received the letters.

29.	The letters are respectively dated 14 April 2014 and 15 December 2014. Each letter is typed and in English, and sophisticated English at that, with the only handwriting being what purports to be Timothy’s signature. Given his then frailty, it is inherently unlikely that Timothy typed either letter.

30.	In the letter of 14 April 2014, Timothy (if it be him) gives the year of Lyia’s death as 2012, not, as it was, 2011. In the first letter, Timothy asserts that there was an error made by him in 2005 with his intention being to transfer the leasehold interest to Lyia and their son Joshua, not Joshinta. There were, apparently, attachments to this letter but what they were was not evidenced. In the second letter, Timothy requests that, as his new wife, Elisha is living with him and taking care of him with his biological daughter (Zion Timothy) and because Joshua remains a minor, he wishes to have the leasehold interest transferred to Elisha. A copy of his previous letter and of Joshua’s birth certificate were attached (apparently) to this letter.

31.	Elisha deposed to her being illiterate and without the benefit of schooling. But someone with a good command of English did prepare the letters and, as we highlight below, their contents were manifestly directed to Elisha’s, not Joshinta’s interests. 

32.	The learned primary judge observed, surely, with respect correctly, that, “It is a very significant decision on the part of the Registrar of Titles to cancel somebody’s interest in land when they have held that interest for 9 years.” His Honour found that there was insufficient evidence before the Registrar of Titles, even if it be accepted that there were two genuine letters that had come in from Timothy, to say that he made a mistake when he transferred the title to Lyia and Joshinta 9 years previously in 2005. His Honour added, “Even if those letters were genuine, the Registrar of Titles was obliged under the Land Registration Act to conduct some genuine inquiry into the genuineness of the intentions of [Timothy].” His Honour considered that there was no “express obligation” under the Land Registration Act to given notice to Joshinta before making a cancellation decision, the Registrar was subject at all times to the principles of natural justice. 

33.	The learned primary judge found that the evidence disclosed, inferentially, that the Registrar cancelled Joshinta’s registration “improperly and unfairly” and that there was a fundamental error in then registering a transfer from Joshua to Elisha in December 2014 at the (purported) request of Timothy, who was no longer the registered proprietor of the residential lease. 

34.	His Honour expressly refrained from finding that the cancellation and transfer in May 2014 and the further transfer in December 2014 were attended with actual fraud but did find, on the balance of probabilities, that each was attended with constructive fraud. His Honour observed that Joshinta was a “registered proprietor … [who] deserved to be given the full protection of the law by a very important public official”. 

35.	Based on his conclusions as to a breach of the affording to Jacinta of an opportunity to be heard and constructive fraud, his Honour made the orders noted above.
36.	It is quite obvious from the transcript of the trial that his Honour was given very little assistance indeed as to authorities concerning the powers of the Registrar to cancel an entry in the register and of the way in which the fraud exception to indefeasibility had been construed either in Papua New Guinea or in other jurisdictions which have a “Torrens” system of title by registration.

37.	Before turning to such authorities, it is necessary to set out ss 160 and 161 of the Land Registration Act. These are found within Part XVII of that Act, which specifies a number of powers of the Registrar and Deputy Registrar. 

160.	Production of instruments wrongly issued, etc.

(1)	Where it appears to the satisfaction of the Registrar that—
(a)	an instrument has been—
(i)	issued to a person in error; or
(ii)	fraudulently or wrongly obtained by a person; or
(b)	an instrument is fraudulently or wrongly retained by a person; or
(c)	an instrument held by a person contains a misdescription of the boundaries, area or position of land; or
(d)	an instrument held by a person contains an entry or endorsement—
(i)	made in error; or
(ii)	fraudulently or wrongly obtained; or
(e)	an instrument of title is held by a party to an ejectment action whose right to the land has been determined,
he may summon that person to deliver up the instrument.
(2)	Where a person refuses or neglects to comply with a summons under Subsection (1), or cannot be found, the Registrar may apply to the Court to issue a summons for that person to appear before the Court and show cause why the instrument should not be delivered up.
(3)	Where a person served with a summons issued under Subsection (2) refuses or neglects to attend before the Court at the time appointed by the summons, the Court may issue a warrant directing the person so summoned to be apprehended and brought before the Court for examination.
(4)	On the appearance before the Court of a person summoned under Subsection (2), or apprehended by the warrant under Subsection (3), the Court may examine him on oath and order him to deliver up the instrument.
(5)	Where a person refuses or neglects to comply with an order under Subsection (4), the Court may commit him to a corrective institution for a period not exceeding six months unless the instrument is sooner delivered up.
(6)	Where a person—
(a)	has absconded or keeps out of the way so that a summons under Subsection (2) cannot be served on him; or
(b)	has refused or neglected to comply with an order under Subsection (4),
the Registrar shall, if the circumstances of the case so require—
(c)	issue to the proprietor of the land an instrument as provided in this Act in the case of a certificate of title lost or destroyed; and
(d)	enter in the Register—
(i)	notice of the issue of an instrument and the circumstances under which it was issued; and
(ii)	such other particulars as he thinks necessary.

161.	Cancellation and correction of instruments and entries.

(1)	Subject to Subsection (2), the Registrar may—
(a)	cancel or correct an instrument delivered up under Section 160; and
(b)	in any other case, on such evidence as appears to him sufficient, correct errors or omissions in—
(i)	the Register or an entry in the Register; or
(ii)	the other duplicate certificate of title or an entry on that duplicate.
(2)	Where a correction is made under Subsection (1)—
(a) the Registrar—
(i)	shall not erase or render illegible any words; and
(ii)	shall affix the date on which the correction was made together with his initials; and
(b)	the Register or other duplicate certificate of title so corrected has the same validity and effect as if the error had not been made except as regards an entry made in the Register before the time of correcting the error.
(3)	Where the Registrar is satisfied that a matter in a certificate of title does not affect the land to which the certificate relates he may record on the title the cancellation of that matter in such manner as he considers proper.
38.	The origins of the “Torrens system” of title to land by registration may be traced to the pioneering work of Sir Robert Richard Torrens, a South Australian politician, which culminated in his introduction of a private member's bill which, as subsequently enacted, became the Real Property Act 1858 (SA) in the then colony of South Australia. The Land Registration Act is the contemporary exemplar in Papua New Guinea of that system of indefeasibility of title by registration. This feature of the Land Registration Act is evident in s 33(1). The Torrens system of title by registration has been adopted throughout Australia, in New Zealand, Malaysia, Singapore and much further afield.

39.	One of the limited exceptions to indefeasibility of title by registration, and the only one relevant in the present case, is fraud.

40.	It was long ago authoritatively established that the fraud concerned must be that of the registered proprietor or his or her agent: Assets Co Ltd v Mere Roihi [1905] AC 176, at 210; see also, more recently, Breskvar v Wall (1971) 126 CLR 376 at 384.

41.	Also long ago established was that, in the statutory exceptions to indefeasibility of the registered proprietor’s title by registration, fraud meant actual, not constructive fraud. Thus, in Assets Co, the Judicial Committee stated, at 210:
[F]raud in these Acts is meant actual fraud, i.e., dishonesty of some sort, not what is called constructive or equitable fraud – an unfortunate expression and one very apt to mislead, but often used, for want of a better term, to denote transactions having consequences in equity similar to those which flow from fraud. Further, it appears to their Lordships that the fraud which must be proved in order to invalidate the title of a registered purchaser for value, whether he buys from a prior registered owner or from a person claiming under a title certified under the Native Lands Acts, must be brought home to the person whose registered title is impeached or to his agents. Fraud by persons from whom he claims does not affect him unless knowledge of it is brought home to him or his agents. The mere fact that he might have found out fraud if he had been more vigilant, and had made further inquiries which he omitted to make, does not of itself prove fraud on his part. But if it be shewn [sic] that his suspicions were aroused, and that he abstained from making inquiries for fear of learning the truth, the case is very different, and fraud maybe properly ascribed to him. A person who presents for registration a document which is forged or has been fraudulently or improperly obtained is not guilty of fraud if he honestly believes it to be a genuine document which can be properly acted upon.

[Emphasis added]
42.	To like effect is an observation of Knox CJ and Rich J in Wicks v Bennett (1921) 30 CLR 80, at 91 that, as it was to be construed in relation to the exception to Torrens system indefeasibility of title by registration, fraud was, “something more than mere disregard of rights of which the person sought to be registered had notice”. To the latter class of “mere notice” case might usefully be added Waimiha Sawmilling Co Ltd (In liq) v Waiane Timber Co Ltd [1926] AC 101 in which it was held by the Judicial Committee that an expeditious registration of title in the knowledge that such registration would defeat a claim a person was seeking to vindicate by litigation did not constitute fraud within the meaning of the exception.

43.	That fraud in the exception to indefeasibility meant actual fraud as stated in Asset Co was confirmed by the Judicial Committee in Frazer v Walker [1967] 1 AC 569, at 580 and 585. 

44.	The facts of Frazer v Walker are instructive in relation to that confirmation of earlier authority and also the present case. Professing to act on behalf of herself and her husband, Mrs Frazer borrowed money from the Radomskis. Security for that loan was to be provided by a mortgage over land jointly owned by the Frazers. Mrs Frazer uplifted the memorandum of mortgage from the Radomskis' solicitors. When she brought it to her solicitor's office for witnessing, it already bore her husband's signature. The mortgage was registered. Following default - no loan repayments were made - the Radomskis exercised their power of sale in favour of Walker. The transfer to Walker was registered and he sought possession of the land. Mr Frazer then asserted that his signature was a forgery. He sought: (i) a declaration that his interest in the land was not affected by either the mortgage or the sale; (ii) a declaration that the mortgage was a nullity; and (iii) orders directing the District Land Registrar to cancel the registrations in favour of the Radomskis and Walker and to restore him and his wife as joint owners of the land. He failed, ultimately before the Judicial Committee, to obtain any of these orders.

45.	Frazer v Walker is also presently noteworthy for the emphatic rejection by the Judicial Committee of the proposition that a failure to comply with a statutory registration requirement in respect of an instrument (signed by the person to be charged or his land agent or solicitor in circumstances where the signature was said to be a forgery) meant that the registrar’s registration of the interest was invalid. The acceptance of such a proposition would, their Lordships stated, Frazer v Walker, at 579-580, be “destructive of the whole system of registration”.

46.	At ultimate appellate level, the most benign of the prior notice of an interest cases is Loke Yew v Port Swettenham Rubber Co Ltd [1913] AC 491. In that case, the respondent rubber plantation company purchased a large block of land from the registered proprietor, Euscope. Although he had no registered interest, Loke Yew was regarded by Euscope as the owner of part of the land pursuant to unregistered Maly documents under which he paid rent to Euscope and was granted possession of that part of the land. Euscope made it clear to the respondent that it would only sell the whole of the land to it if Loke Yew was given an assurance that his possession of this part of the land would not be disturbed. An officer of the rubber company gave such an assurance to Loke Yew and the purchase went ahead with the respondent thereby becoming the registered proprietor of the whole of the land. Upon registration, the rubber company called upon Loke Yew to give up possession. On the facts, the Judicial Committee considered that a fraudulent statement had been made by the rubber company to induce Euscope to sell the whole of the land to it and ordered the rubber company to transfer the part of the land of which Loke Yew had possession to him.

47.	Against this background of cases consistently decided at ultimate appellate level over the course of the 20th century in relation to the Torrens system of title by registration, the conclusion unanimously reached by this court in Mudge v The Secretary for Lands [1985] PNGLR 387 that, notwithstanding that a State lease issued under the Land Act may have been issued irregularly and in breach of the provisions of that Act, the resultant registration of an interest in that lease conferred indefeasibility in respect of that interest was, with respect, completely congruent and orthodox. The court adopted and applied Assets Co, Frazer v Walker and Breskvar v Wall in reaching that conclusion. Explicitly in the judgment of Pratt J and, by their application of these cases implicitly in the case of Kidu CJ and Woods J, the court also accepted that, in s 33 of the Land Registration Act, fraud meant actual fraud. Thus, Kidu CJ held (at 390):

Under legislation based on the ... [Torrens] system (in Australia and New Zealand) it is now settled law that, apart from the exceptions mentioned in the relevant legislation, once land is registered under the Torrens system the owner acquires an indefeasibility of title.
To a like effect is this statement by Pratt J (at 397):
The end result of all this is that even if I were to find in the appellants' favour that the lease was void because of serious irregularities concerning the way in which it was issued prior to registration, such registration, in the absence of fraud, achieves an immediate indefeasible title. I agree with the learned trial judge that “whilst the Court could have been of assistance to the plaintiff prior to the day of registration because of failure in issuing a lease to observe the provisions ... under the Land Act, but time had moved on”. 
48.	It must follow that, as at Independence, and as at the time the Land Registration Act was enacted, the fraud exception to the indefeasibility otherwise conferred by registration did not mean constructive or equitable fraud. Parliament must be taken to have enacted the Land Registration Act against the background of settled authority as to the meaning of the fraud exception. For fraud to carry the meaning constructive or equitable fraud would have required a special definition of fraud in that Act. There is no such definition. The Land Registration Act is a conventional, Torrens title system statute.

49.	Mudge has been followed and applied by this court on numerous occasions: Keindip v The State of Papua New Guinea [1993] PNGLR 28; Timano v Timano [1993] PNGLR 334; Mamun Investments v Ponda [1995] PNGLR 1; Kiso v Otoa [2013] PGSC 3; SC1222; Paga No 36 Ltd v Eleadona [2018] PGSC 17; SC1671; Soto v Our Real Estate Ltd [2018] PGSC 55; SC1701. More than once, it has been stated that fraud for the purposes of s 33(1)(a) of the Land Registration Act means actual, not constructive, fraud. There are numerous examples of adherence to this view in the National Court, the most notable of which is Papua Club Inc v Nasaum Holdings Ltd [2004] PGNC 178; N2603, in which Gavara-Nanu J offers a comprehensive survey of authority on the subject in this and other jurisdictions.

50.	Were our analysis of authority to stop here, it would necessarily follow that the conclusion of the learned primary judge, based as it was on the understanding that constructive fraud was sufficient, was, with respect, wrong. However, that understanding cannot, with respect, be dismissed as idiosyncratic. There are authorities in this jurisdiction, albeit not elsewhere in the jurisprudence of countries which have adopted a Torrens system of title by registration, which support such an understanding.

51.	Mr Lome took us to one such judgment of this court, Tikili v Home Base Real Estate Ltd [2017] PGSC 1; SC1563. In that case, the learned primary judge, with Yagi and Neill JJ, on this occasion constituted this court. Their Honours held that “fraud” in s 33(1)(a) of the Land Registration Act meant not just actual fraud but also constructive fraud. The latter was said to be exemplified where the circumstances of a transfer are so unsatisfactory, irregular or unlawful as tantamount to fraud, and so warranting the setting aside of registration of title. The Court stated, at [21] to [23]:

21.	Mr Habuka submitted that it is settled law that the registered proprietor of a State Lease has an indefeasible title to the land subject only to the exceptions in Section 33(1) of the Land Registration Act, including in a case of fraud; and that if the registered proprietor’s title is to be set aside on the ground of fraud, there must be proof of actual fraud on the part of the registered proprietor. He cites a line of Supreme Court authority in support of those propositions: Mudge v Secretary for Lands [1985] PNGLR 387, Koitachi Ltd v Walter Schnaubelt (2007) SC870 and Eric Kiso v Bennie Otoa & Ken Wutnalom (2013) SC1222. Mr Habuka submits that there was in the National Court no evidence of actual fraud by any person, let alone by the registered proprietor, Mr Toki. Therefore the primary Judge erred by quashing Mr Toki’s title.
22.	While we acknowledge that the Supreme Court decisions referred to by Mr Habuka do tend to support the propositions underpinning this ground of appeal, it must be also acknowledged that there are other Supreme Court decisions that do not say the same thing, including 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. These cases support the proposition that in many situations it will not be appropriate to insist on proof of actual fraud before the National Court considers quashing the registered proprietor’s title. It will be sufficient if constructive or equitable fraud is proven, where, for example, interests in land are transferred in an obviously unlawful or irregular manner.
23.	Here the National Court tacitly, and, in our view properly, formed the view that all transactions regarding the land that occurred after the order of the National Court on 1 June 2015 (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. Those decisions and transactions included registration of the transfers on29 June 2015 from the NHC to Dr Momak and from Dr Momak to Mr Toki. On this reasoning it was permissible for Mr Toki’s title to be quashed, even though there was no evidence of actual fraud by him. We find no error of law on the part of the National Court.
52.	To Tikili v Home Base Real Estate and the constructive fraud line of cases referred to in it might now be added the recently decided Jaro Investment Ltd v Ane [2022] PGSC 5; SC2192 and Camilus v Mota [2022] PGSC 17; SC2210. In Jaro Investments Ltd v Ane a defective exercise of power by the Registrar of Titles in cancelling the interest of an earlier registered proprietor was held to undo the title of a subsequent registered proprietor. In Camilus v Mota, Manuhu and Narokobi JJ (Kassman J dissenting) held that s 31(1)(a) of the Land Registration Act was broad enough to encompass both actual and constructive fraud. 

53.	Jaro Investment Ltd v Ane and Camilus v Mota are, with great respect, impossible to reconcile with the advice of the Judicial Committee in Frazer v Walker, to which the court does not appear to have been taken. In relation to the fraud exception to indefeasibility for which s 33(1)(a) of the Land Registration Act provides, Jaro Investment Ltd v Ane and Camilus v Mota are, with great respect, the latest manifestation of a false line of authority which has developed in Papua New Guinea.

54.	The origins of the constructive fraud line of authority may be traced to Emas Estate Development Pty Ltd v Mea [1993] PNGLR 21. In that case, the respondent (Mea) was the registered proprietor of a State Lease. The relevant Minister purported to forfeit Mea’s lease on the basis of alleged breaches of certain covenants. Rival applications for grant of a lease in respect of the land previously leased to Mea were made by Emas Estate and another party. The Land Board recommended that the relevant land be leased to Emas Estate. Mea appealed to the Minister against the Land Board’s decision. While that appeal was pending the land was leased to Emas Estate. Emas Estate became the registered proprietor of the State Lease.

55.	The Supreme Court (Amet and Salika JJ; Brown J dissenting) was divided in Emas Estate Development Pty Ltd v Mea on the question as to whether the fraud exception in s 33(1) of the Land Registration Act required proof of actual fraud by the registered proprietor or whether constructive fraud was sufficient. The majority considered that indefeasibility could be overcome where there were clear breaches of statutory provisions by an appropriating authority. Thus, Amet J (as his Honour then was) (at 219-220) stated that: 

I believe that, although those irregularities and illegalities might not amount strictly to fraud, they should, nevertheless, still be good grounds for invalidating subsequent registration, which should not be allowed to stand. To not do so would be harsh and oppressive against the innocent individual leaseholder, such as the first respondent. 
Similarly, Salika J (as his Honour then was) held (at 228-229):
I agree, in principle, that where a title has been registered under one's name, it is not capable of being annulled, except where title has been acquired through fraud. I think other exceptions suitable for Papua New Guinea circumstances should be included such as:
•	where title has been registered fraudulently
•	where title has been registered while a court or tribunal is deliberating on the subject land
•	where title has been registered under influence of position of power or money
•	where title has been registered under circumstances giving rise to possible breach of principles of natural justice.
I lay out these conditions because land is a very important commodity in this country. Government land is very scarce in this country, and people or corporations applying for lease of government land must be seen to be allocated such land without any fraud or outside influence, but simply on the merits.
In the instant case, there is evidence that John Mea, the former proprietor of the lease in relation to the subject property, was not informed that his lease was going to be forfeited. In other words, he was not served a notice to show cause why his lease should not be forfeited. The State went ahead and forfeited his lease and then granted a new lease to the plaintiff. Given the situation that John Mea was not given a chance to defend the continuation of his lease, I am of the view that the failure to give him notice was a fundamental breach by the State officers. In my view, it would amount to a breach of John Mea's rights under category 4, I have outlined.
56.	The remaining judge, Brown J, dissented on the grounds that Emas Estate had acquired indefeasible title and Mea’s claim did not fall within any of the exceptions under s 33 of the Act. In doing so, his Honour cited and applied Mudge. 

57.	It is difficult not to feel a sense of disquiet, even outrage, on the facts of Emas Estate Development Pty Ltd v Mea in relation to the forfeiture, without notice, of Mr Mea’s leasehold interest. However, there was no finding that Emas Estate was complicit in that forfeiture. As Frazer v Walker makes clear, a conclusion that the fraud exception to indefeasibility has not been proved does not exclude such remedies in personem as may exist. Mr Mea may have had such remedies against the State in light of the Minister’s action. Equally, and with the very greatest respect to the majority in that case, the role of enacting amendments to legislation is consigned by the Constitution to the parliament, not to the judiciary. Truly profound questions of great national importance to those holding registered interests in land, be they residential or otherwise, and to those who lend on the basis of the indefeasibility (subject to strictly limited exceptions) of such interests are, and always have been, raised by such a marked departure from a universally settled feature of the Torrens system of title by registration and the understanding that the fraud exception to the indefeasibility of a registered interest requires proof of actual fraud. 

58.	The position in which we find ourselves in relation to the meaning of the fraud exception to indefeasibility for which s 33(1)(a) of the Land Registration Act provides is a difficult one indeed. Mudge is a considered, unanimous judgment of three judges of this Court. It adopts as applicable to the construction of s 33(1)(a) the understanding of that meaning adopted by a long line of authority of judgments of the highest persuasive authority. Mudge and that line of overseas authority has, on many an occasion, been followed by this Court. On the other hand, Emas Estate Development Pty Ltd v Mea is also a judgment of this Court constituted by three members, one of whom dissented on a matter of relevant principle as to the outcome.  It, too, has been followed more than once by this Court. The question as to which line of authority is correct has not to date, as well it might have been, been considered, much less answered, by this Court constituted by more than three judges. In hindsight, were there to be a departure from Mudge, Emas Estate Development Pty Ltd v Mea or any other of the later cases where that departure is evident ought desirably to have been heard and determined by this Court constituted by five judges: Public Prosecutor v John Aia and Peter Pino [1978] PNGLR 224; SC132. Principles of stare decisis, consistency and judicial comity were, and remain, at large and on this important point of law, all too often encountered in cases in the lists of the National Court and this court. 

59.	These weighty considerations acknowledged, and as was highlighted in SCR No 2 of 1992: Re The Leadership Code [1992] PNGLR 332; SC440, in a proper case a three-member court may overrule an earlier judgment of a three member court. This is made explicit by Schedule 2.9(1) of the Constitution, “(1) All decisions of law by the Supreme Court are binding on all other courts, but not on itself” (emphasis added). 

60.	In our respectful view, the time has well and truly come to overrule Emas Estate Development Pty Ltd v Mea and all subsequent authorities in which it has been held that “fraud” in s 33(1)(a) of the Land Registration Act includes constructive fraud.

61.	Thus, while we acknowledge that the approach of the learned primary judge that proof constructive fraud was sufficient to demonstrate the exception to indefeasibility for which s 33(1)(a) of the Land Registration Act provides is supported by a line of authority, we are unable, with great respect, to accept the correctness of that line of authority. That line of authority should be overruled. 

62.	Elisha went further, contending that the learned primary judge had, in any event, made no clear finding as to which party had wrought a constructive fraud on Joshinta. But this submission pays no heed to the required approach to the reading of reasons for judgment delivered ex tempore. The learned primary judge plainly felt that the controversy revealed by the evidence before him, exposing as it did a disturbance of an interest enjoyed by Joshinta for some nine years, brooked no further delay in its quelling by judicial determination. Reasons for judgment delivered ex tempore are not to be read narrowly and with an eye for error. Allowance must be made for infelicity of language. Reading the reasons as a whole, it is tolerably clear that the learned primary judge considered that Elisha had wrought a constructive fraud on Joshinta, although his Honour was not prepared to conclude that this amounted to actual fraud. 

63.	There was evidence to support, inferentially, a conclusion that, at least constructively, Elisha had wrought a fraud on Joshinta. The two were not unknown to each other. Timothy was on the evidence, very frail and being cared for by Joshinta and her husband. Elisha was a relative newcomer in her relationship with Timothy, a relationship which commenced only after the death of Lyia in 2011. Yet, it was not until 2014 that Timothy wrote to the Registrar (assuming, as did the primary judge, that it was Timothy). Yet further, when Elisha formed her relationship with Timothy, the subject residential lease had long been transferred by Timothy to Lyia and his adopted daughter, Joshinta. It was Joshinta’s husband to whom Timothy had granted a power of attorney and thus, in whom, in his frail last years he had invested his trust. Joshua was but an infant and so unlikely to have had any meaningful participation in any fraud, actual or even constructive. It was always Elisha who stood to gain by becoming the registered proprietor and, if she did not, her continued ability to reside at the subject premises would be in jeopardy on Timothy’s death. The two letters to the Registrar each contain fundamental misstatements; on the one hand as to the date of Lyia’s death and on the other as to an understanding by Timothy that the residential leasehold interest remains his to transfer. The learned primary judge appears to us to have been persuaded that, inferentially, it was Elisha who at least procured Timothy to sign and submit the letters to the Registrar, even assuming that he had indeed signed them. What the learned primary judge felt unable to conclude on the evidence was that she had done this dishonestly. His Honour in our view found that Elisha was at least a party in procuring the Registrar both to cancel Joshinta’s registered interest, to record Joshua as the registered proprietor and then to record her as the registered proprietor. In short then, his Honour appears to have concluded that Elisha had not taken her interest innocently in the sense of taking it without notice of Joshinta’s existing interest, as opposed to taking it as a sequel to a plan whereby she would become the registered proprietor.

64.	Elisha also contended that the learned primary judge had failed to apply a rigorous standard of proof in relation to his conclusion of constructive fraud. Implicitly, this accepts that it was indeed Elisha in respect of whom his Honour made a finding of constructive fraud. This contention appears to have been based on the absence in the reasons for judgment of the learned primary judge of express reference to well-known observations made by Sir Owen Dixon in Briginshaw v Briginshaw (1938) 60 CLR 336, at 361 as to the need in civil cases calling for a finding of grave misconduct not to be satisfied on the balance of probabilities that such conduct has been proved by inexact proofs or indirect references. 

65.	That same understanding has been evident in cases decided in this jurisdiction both before Independence (the earliest would appear to be Berkefeld v Berkefeld [1953] PGSC 9) at a time when Briginshaw v Briginshaw was binding authority and, after Independence, when it has been accepted as stating the correct approach (most recently, in Yagama v Uguro [2018] PGSC 24; SC1682). But his Honour, expressly and correctly, referred to the standard of proof as being, proof on the balance of probabilities. He expressly refrained from finding actual fraud proved. And his Honour was, with respect, a very experienced judge indeed. It is implicit that the occasion for his Honour’s refraining from finding actual fraud was a clear understanding that such a conclusion ought not lightly to be reached, even though proof of the balance of probabilities was all that was required in a civil proceeding. It would be an impermissibly rigorous reading of reasons for judgment delivered ex tempore to uphold Elisha’s contention on this issue.

66.	As mentioned above, it has been established that irregularities in the process of registration by the Registrar, not themselves amounting to fraud, do not have the effect that, on registration, a registered proprietor does not obtain an immediate, indefeasible title. Nonetheless, the conclusion of the learned primary judge that the Registrar was obliged to offer Joshinta an opportunity to be heard before cancelling her registered interest was, unquestionably, correct. 

67.	Section 161 of the Land Registration Act confers two distinct powers on the Registrar. The Registrar is granted a power to cancel or correct an instrument delivered up under Section 160: s 161(1)(a). The Registrar is also given a power to correct errors or omissions, “in any other case, on such evidence as appears to him sufficient”: s 161(1)(b).

68.	Flowing from the stipulation in s 161(1)(b) of the Land Registration Act that the power thereby conferred falls to be exercised “in any other case”, it necessarily follows that the powers conferred by s 161(1)(a) and s 161(1)(b) are mutually exclusive.

69.	An exercise of the power granted to the Registrar by s 161(1)(a) of the Land Registration Act must be a sequel to the summons procedure for which s 160 of that Act provides. One basis upon which that procedure may be initiated by the Registrar is where it appears to the Registrar that an instrument held by a person contains an entry or endorsement fraudulently or wrongly obtained: s 160(1)(d)(ii). That summons procedure entails, explicitly, the affording to a person who may be affected by an exercise of the power conferred by s 161(1)(a) of the Land Registration Act an opportunity to be heard. That procedure was the subject of observations by the court in Jaro Investment Ltd v Ane, which were not dependent upon the correctness of the court’s conclusion that constructive fraud constituted an exception to indefeasibility. It is not necessary to consider those observations, because on the evidence, the Registrar did not engage the s 160 summons procedure and thus did not act under s 161(1)(a). Rather, the Registrar at least purported to act under s 161(1)(b) of the Land Registration Act.

70.	There is no express procedure in the Land Registration Act for the affording of an opportunity to be heard by an exercise by the Registrar of the power conferred by s 161(1)(b). However, where the exercise of that power might affect the interest of a registered proprietor, it necessarily follows from the requirement that legislation must be read subject to the Constitution that, by virtue of s 59 of the Constitution, the Registrar was obliged to offer Joshinta an opportunity to be heard before exercising the power conferred by s 161(1)(b) of the Land Registration Act. This he did not do.

71.	The exercise of the power conferred by s 161(1)(b) of the Land Registration Act to correct the register is limited to obvious clerical and administrative errors. In exercising that function the Registrar ought not to adjudicate competing claims to the land: Frazer v Walker at 581; Re McCarthy and Collins (1901) 19 NZLR 545 at 549-550; District Land Registrar v Thompson [1922] NZLR 627 at 629; Re Jobson and the Real Property Act 1900 (1950) 68 WN (NSW) 23 at 24; State Bank of New South Wales v Berowra Waters Holdings Pty Ltd (1988) 4 NSWLR 398 at 403.

72.	It is necessary to read the Land Registration Act as a whole to discern the overall statutory scheme. So doing discloses that, in general, the exercise of the Registrar’s powers under s 161(1) must be limited to a period before a bona fide purchaser or mortgagee acquires an interest by registration. Necessarily, a bona fide purchaser will be innocent of any fraud. However, even such an interest is subject to other exceptions for which s 33(1) of the Land Registration Act expressly provides.

73.	 James v Registrar-General (1967) 69 SR (NSW) 361, a case decided after and by express reference to Frazer v Walker, offers an example of how, even in relation to a registered interest acquired by a bona fide purchaser for value, a registrar might permissibly correct the register so as to record on the title a prior registered easement erroneously omitted from a later issued certificate of title. Notably in that case, the Registrar-General only exercised the power of correction after notice to the registered proprietor. Just this class of exception is specified in s 33(1)(d) of the Land Registration Act. 

74.	The difficulty for Joshinta is that her prior interest does not fall within any of these other exceptions for which s 33(1) of the Land Registration Act provides. The learned primary judge expressly found that no actual fraud was present. Although, as understood on a fair reading and as we have explained above, it might perhaps have been concluded by analogy with Loke Yew v Port Swettenham Rubber Co Ltd that this was in fact a case of fraud falling within the exception, no notice of such a contention was given by Joshinta. It would not therefore be procedurally fair to Elisha to uphold the orders made by the learned primary judge on the basis of such a conclusion. 

75.	After reserving judgment on the appeal and in the course of considering its determination, our researches disclosed another overseas case which we considered might offer persuasive authority in relation to its determination. That case is Shimoni Resort v Registrar of Titles [2016] eKLR, a judgment of the High Court of Kenya.

76.	Like Papua New Guinea, Kenya also has a statutory Torrens system of land title by registration. Also like Papua New Guinea but unlike the New Zealand position considered in Frazer v Walker or the other overseas authorities to which we have referred, the Kenyan Constitution enshrined certain basic rights to which statutory provisions were subject. Particularly having regard to the terms not just of s 59 but especially s 53 and 54 of the Constitution, Shimoni Resort v Registrar of Titles seemed to us to be relevant on the facts to the determination of the appeal.

77.	In Shimoni Resort v Registrar of Titles, Kenya’s Minister for Lands had, unilaterally, directed the Registrar of Titles to cancel specific entries made in respect of certain Torrens system land which had vested specified interests and rights in various parties, including Shimoni Resort. The Registrar of Titles had acted in compliance with the Minister ‘s directive and on the same date as that directive, and without giving the company an opportunity to be heard, cancelled Shimoni Resort’s registered interest. The Minister was also held not to have followed due process in issuing his directive.

78.	Kenya’s Constitution mandated fair administrative action. It also, by Article 40, provided, materially:

(3)	The state shall not deprive a person of property of any description, or of any interest in, or right over property of any description, unless the deprivation-
(a)	Results from an acquisition of land or an interest in land or a conversion of an interest in land or title to land, in accordance with Chapter five; or
(b)	Is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that-
(i)	Requires prompt payment in full, of first compensation to the person; and
(ii)	Allows any person who has an interest in, or right over, that property a right of access to a court of law.
(4)	………………………
(5)	………………………
(6)	The rights under this Article do not extend to any property that has been found to have been unlawfully acquired.
79.	Against this background, Okong’o J stated, Shimoni Resort v Registrar of Titles at [53] – [54]:

Sections 26 (1) (a) and (b) of the Land Registration Act, 2012 was enacted after the promulgation of the Constitution 2010 and clearly provided the title of a bona fide purchaser cannot be impugned unless the title holder is proved to have been a party to the fraud or misrepresentation that led to the registration of the title. In my view the most appropriate interpretation of Article 40 (6) of the Constitution would be that it would apply to a defrauder and there would be no intention to deprive an innocent buyer of his property. Thus Article 40 (6) of the Constitution in my considered opinion would only apply to registered owners who are found to have acquired the properties unlawfully. It is such property that would not be protected under Article 40 of the Constitution. The property in the hands of a bona fide purchaser would be protected even if it is shown that at some point in the past before the bona fide purchaser acquired the property the same had been fraudulently transacted.
80.	In Papua New Guinea’s Constitution, ss 53 and 54 provide:

53.	Protection from unjust deprivation of property. 
(1)	Subject to Section 54 (special provision in relation to certain lands) and except as permitted by this section, possession may not be compulsorily taken of any property, and no interest in or right over property may be compulsorily acquired, except in accordance with an Organic Law or an Act of the Parliament, and unless—
(a)	the property is required for—
(i)	a public purpose; or
(ii)	a reason that is reasonably justified in a democratic society that has a proper regard for the rights and dignity of mankind, 
	that is so declared and so described, for the purposes of this section, in an Organic Law or an Act of the Parliament; and 
(b)	the necessity for the taking of possession or acquisition for the attainment of that purpose or for that reason is such as to afford reasonable justification for the causing of any resultant hardship to any person affected.
(2)	Subject to this section, just compensation must be made on just terms by the expropriating authority, giving full weight to the National Goals and Directive Principles and having due regard to the national interest and to the expression of that interest by the Parliament, as well as to the person affected.
(3)	For the purposes of Subsection (2), compensation shall not be deemed not to be just and on just terms solely by reason of a fair provision for deferred payment, payment by instalments [sic] or compensation otherwise than in cash.

(4)	In this section, a reference to the taking of possession of property, or the acquisition of an interest in or right over property, includes a reference to—
(a)	the forfeiture; or
(b)	the extinction or determination (otherwise than by way of a reasonable provision for the limitation of actions or a reasonable law in the nature of prescription or adverse possession),
of any right or interest in property.
(5)	Nothing in the preceding provisions of this section prevents—
(a)	the taking of possession of property, or the acquisition of an interest in or right over property, that is authorized by any other provision of this Constitution; or
(b)	any taking of possession or acquisition—
(i)	in consequence of an offence or attempted offence against, or a breach or attempted breach of, or other failure to comply with a law; or
(ii) 	in satisfaction of a debt or civil obligation; or
(iii)	subject to Subsection (6), 
where the property is or may be required as evidence in proceedings or possible proceedings before a court or tribunal,
in accordance with a law that is reasonably justifiable in a democratic society that has a proper regard for the rights and dignity of mankind; or
(c)	any taking of possession or acquisition that was an incident of the grant or acceptance of, or of any interest in or right over, that property or any other property by the holder or any of his predecessors in title; or
(d)	any taking of possession or acquisition that is in accordance with custom; or
(e)	any taking of possession or acquisition of ownerless or abandoned property (other than customary land); or
(f)	any restriction on the use of or on dealing with property or any interest in or right over any property that is reasonably necessary for the preservation of the environment or of the national cultural inheritance.
(6)	Subsection (5)(b)(iii) does not authorize the retention of any property after the end of the period for which its retention is reasonably required for the purpose referred to in that paragraph.
(7)	Nothing in the preceding provisions of this section applies to or in relation to the property of any person who is not a citizen and the power to compulsorily take possession of, or to acquire an interest in, or right over, the property of any such person shall be as provided for by an Act of the Parliament.

54. Special provision in relation to certain lands.
Nothing in Section 37 (protection of the law) or 53 (protection from unjust deprivation of property) invalidates a law that is reasonably justifiable in a democratic society that has a proper regard for human rights and that provides—

(a)	for the recognition of the claimed title of Papua New Guinea to land where—
(i)	there is a genuine dispute as to whether the land was acquired validly or at all from the customary owners before Independence Day; and
(ii)	if the land were acquired compulsorily the acquisition would comply with Section 53(1) (protection from unjust deprivation of property); or
(b)	for the settlement by extra-judicial means of disputes as to the ownership of customary land that appear not to be capable of being reasonably settled in practice by judicial means; or
(c)	for the prohibition or regulation of the holding of certain interests in, or in relation to, some or all land by non-citizens.
81.	It appeared to us, having regard to Shimoni Resort v Registrar of Titles, that ss 53, 54 and 59 of the Constitution, may, on the facts of the present case, be relevant to its determination. While constitutional rights issues had been agitated in the original jurisdiction, the learned primary judge had, s 59 of the Constitution aside, not found any merit in these. Moreover, not only did his Honour not have the benefit of Shimoni Resort v Registrar of Titles being drawn to his attention but no argument specifically focussing on the ramifications of s 53 of the Constitution in particular was made to him. In these circumstances, before reaching any concluded view as to the ramifications, if any, of these constitutional provisions, we considered ourselves duty bound to offer the parties an opportunity to make such supplementary submissions, if any on the issue as they may be advised. We expressly drew Shimoni Resort v Registrar of Titles to the attention of the parties for this purpose.

82.	In the result, only the various State party respondents, and then only on an amicus basis, chose to file and serve supplementary submissions by the date appointed for that purpose. Given the stance adopted in respect of the appeal by the State party respondents, the tendering of submissions on an amicus basis was appropriate. We have found those submissions of particular assistance.

83.	Thus far in Papua New Guinea, the ramifications, if any, of s 53 of the Constitution in relation to an invalid exercise of the Registrar’s power of cancellation have not fallen for consideration. 

84.	It is to acquisitions by the State and its instrumentalities and emanations, not a private party, that s 53 and s 54 of the Constitution are directed: PNG Ready Mix Concrete Pty Ltd v The State [1981] PNGLR 396; Amaiu v Yalbees [2020] PGSC 133; SC2046.  Given that, in s 53 of the Constitution, an “acquisition” by the State of an interest in property includes the “extinction or determination” of an interest, it must follow, in our view, that when the Registrar, an officer of the State, cancelled Joshinta’s interest, the State compulsorily acquired that interest. The State parties accepted as much in their submissions.
85.	Read together, it is patent that s 53 and s 54 of the Constitution provide a qualified, not an absolute, protection from the compulsory acquisition of interests in property by the State. However, none of these qualifications is applicable in the present circumstances. The acquisition by cancellation of Joshinta’s interest by the Registrar was permissible only if undertaken in accordance with, materially, the Land Registration Act. The cancellation was not undertaken in accordance with the paramount requirement, flowing from s 59 of the Constitution, that the power of cancellation in s 161(1)(b) of the Land Registration Act could only be exercised after affording Joshinta an opportunity to be heard in relation to a proposed cancellation. 

86.	The State parties accepted in their amicus submission that such a cancellation amounted to an unlawful acquisition and thus one forbidden by s 53 of the Constitution.

87.	Moreover, Elisha was complicit in procuring the Registrar to exercise that cancellation power in circumstances in which she must be taken to have known that Joshinta’s rights as registered proprietor would be affected by any exercise of the cancellation power. 

88.	Elisha did not acquire her later registered interest in good faith and for valuable consideration.

89.	In the most commonly encountered circumstance, a registered proprietor will obtain title from the Registrar’s act of registering the title on the register on the Register: see s 26 of the Land Registration Act; Commonwealth v State of New South Wales (1918) 25 CLR 325 at 342; Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343 at 344-345. In that circumstance, a bona fide purchaser for value will not be effected by actual or constructive notice of any claim, save for those claims that have been registered in the register: see s 45 of the Land Registration Act. This type of case falls within s 53(5)(c) of the Constitution, as it is an acquisition of an interest in property that was an incident to the grant and acceptance of that property by the registered proprietor to the bona fide purchaser for value. We share the view expressed in Shimoni Resort v Registrar of Titles in the passage quoted above that a bona fide purchaser for value and without notice would not be affected by the prohibition on compulsory acquisition.

90.	This stands in contrast from the circumstances of the present case, where there was no such purchaser. To reiterate, on the findings made by the learned primary judge, Elisha was complicit in procuring the Registrar to act in a way that led to her becoming registered proprietor and Joshinta’s prior registered interest being cancelled (and thus acquired) by the Registrar. 
91.	What follows from the foregoing is that the Registrar’s cancellation of Joshinta’s registered interest and his subsequent actions which led to Elisha’s becoming the registered proprietor transgressed the constitutional protection from compulsory acquisition of Joshinta’s interest by the State or an emanation of the State.

92.	In turn what follows is that, albeit for reasons other than those given by his Honour, there was no error in the orders under appeal. The appeal must therefore be dismissed.

93.	Although Joshinta has succeeded for reasons other than those pressed on her behalf in submissions, there was, as is evident from these reasons for judgment, a line of authority in this jurisdiction in relation to the sufficiency of proof of constructive fraud as an exception to indefeasibility which supported the approach taken by the learned primary judge. On the basis of that line of authority, Joshinta was entitled to succeed on the hearing of the appeal. However, for the reasons given above, we consider that this line of authority is erroneous. Elisha offered no analysis at all of the many authorities both in this jurisdiction and overseas which led us to that conclusion. Further, the basis upon which the appeal has been dismissed reflects a constitutional issue which the Court raised of its own motion with the parties and afforded them an opportunity to be heard. The event on the appeal is one of dismissal of the appeal. Ordinarily in relation to costs, a judicial exercise of the costs discretion is that costs follow the event. We do not see any occasion why, in the present circumstances, the costs discretion should be exercised in any other way.

94.	Accordingly, noting that the State party respondents adopted a submitting stance, the orders which we make are:

a.	The appeal be dismissed. 
b.	The first appellant pay the respondent’s costs of and incidental to the appeal, to be taxed if not agreed. 

95.	ANIS J: The first appellant appeals against the decision of the trial Court made on 31 May 2017, in proceeding WS (HR) 21 of 2015 (the National Court proceeding).  The National Court proceeding was commenced by the respondent.  She was aggrieved and sued the appellants after she had learnt of changes made to a title to a property described as Section 307, Allotment 68, Hohola, National Capital District (the Property).  

96.	In the National Court proceeding, the respondent claimed, amongst others, that she lost her propriety interest in the Title to the Property through fraudulent means.  She sought relief which included orders or declarations for the Title to the Property to be restored to her name.

97.	The final orders of the trial Court read in part:
1.	It is declared that the purported cancellation of title of the subject land Section 307, Allotment 68, Hohola, National Capital District that was registered on 5th May 2014 is null and void.
2.	It is declared that the subsequent transfers of the subject land are null and void.
3.	The third defendant [the appellant herein], the Registrar of Titles shall take steps necessary to ensure that by 30th June 2017 the Plaintiff, Joshinta Timothy is restored as a sole registered proprietor of the subject property.
4.	It is declared that from the date of entry of this order the Plaintiff has the right to occupancy of the subject property and that the First Defendant and all other persons shall not occupy or enter the property without the consent of the Plaintiff.
…

98.	The appellants challenge these orders in this appeal.  The second, third and fourth appellants, however, have stated at the commencement of the appeal hearing, that they take no position in the appeal.  And so, we heard submissions from the first appellant (appellant) and the respondent. 

GROUNDS OF APPEAL
99.	The appellant cites 4 grounds of appeal in her notice of appeal.  They read:
3.1	The learned primary judge erred in fact and in law further clearly stating the powers of the Registrar of Titles applied in cancellations of transfer of the Title pursuant to Section 161 of the Land Registration Act Chapter No 191 as null and void.

3.2	The learned primary judge erred in fact and in law in concluding and or declaring if there was completion of the full process exercised by the Registrar of Titles in regard to the transfer of title of property in the subject property known as Section 307, Lot 68, Hohola, National Capital District, a residential property.

3.3	The learned primary judge erred in fact and in law in dissolving all interim orders and order of 29th September, 2015 and allowing declaration of the titled of the subject land section 307, Allotment 68, Hohola, National Capital District that was registered on 5th May, 2014 as null and void when at all material times, the original owners copy of the Title still remained under the name of Timothy Pipi (deceased) as the sole proprietor of the property of subject land section 307 Allotment 68, Hohola, National Capital District.  

3.4	The learned judge erred in fact and in law when he failed to judicially determine the legitimacy of the Adoption of Childrens Act under Law and Customarily being supported by the Affidavits of Bloodline/Close Relatives, the basis of the alleged fraud by the Lands Department as claimed in WS (HR) 21 of 2015 and the legality of the powers of Section 161 of the Land Registration Act, Chapter 191.

GROUNDS 3.2, 3.3 & 3.4
100.	I will deal with grounds 3.2, 3.3 and 3.4 together now.

101.	The appellant’s counsel has, in his written submission, abandoned ground 3.2.  Counsel stated in his written submission that he could not make sense out of it.  I need not say more.

102.	In regard to ground 3.3, I observe that the said ground is factually inaccurate and ambiguous.  The undisputed material facts that were before the Court included the following. The Property was purchased from the National Housing Corporation and owned by Timothy Pipi (Timothy).  He and his legal wife, Lyia Laiam (Lyia), and their adopted daughter, the respondent, lived on the said property as at 1992.  The Property was later transferred to the respondent and her mother Lyia, as joint tenants, on 19 April 2005.  In 2011, Lyia died of a heart failure.  The respondent then became the sole registered proprietor of the Property.  The respondent owned the Property for a period of 9 years to about 5 May 2014, which was when her complaint arose.  She said without her knowledge or consent, her propriety interest in the Property was purportedly cancelled under s 161 of the Land Registration Act 1981 (LRA) by the Registrar of Titles (RoT).  The actions of the RoT are recorded on a schedule which is attached at the back of the Title to the Property (Title’s entry/schedule).  On the same day, the RoT, she complained, purportedly transferred the Property over to her late mother Lyia and one Joshua Timothy (Joshua), as joint tenants.  Again, and on the same day, she complained before the National Court, a further entry was recorded on the Title’s entry by the RoT.  The entry recorded the notice of death of Lyia and recognised Joshua as the sole registered proprietor of the Property.  The respondent further complained that seven months later on 18 December 2014, the Property was purportedly transferred by the RoT, to the appellant.  This was also recorded onto the Title’s entry of the Property.  Timothy passed on in January of 2015.

103.	The Title’s entry shows that Timothy had disposed his legal or propriety interest in the Property, over to the respondent and his late wife Lyia, on 19 April 2005.  So, if the trial Judge were to declare the transfer and ownership of the Property under the joint names of Joshua and Lyia or under the name of the appellant who was its last registered owner, null and void, the Property would revert to the previous registered proprietor, which would be the respondent, who was its previous sole owner, and not Timothy.  In fact, that was what the trial Judge had done in his final decision.  It is also inconsequential that Timothy or his estate may still be keeping an Owners’ Copy of the Title to the Property given the undisputed fact that Timothy had disposed his interest in the Property on 19 April 2005.

104.	I therefore find ground 3.3 factually inaccurate and also ambiguous, and I dismiss it.

105.	Ground 3.4 raises claims that His Honour erred in not making a judicial determination on the legitimacy or proof that the respondent had been adopted under statute or customary law.  I find this ground of appeal misconceived.  It is irrelevant or has no bearing on the material issue that was before the trial Court, namely, on the question of whether legal or constructive fraud had been committed or perceived to have been committed, by those concerned in the various transactions that had followed after 2005.  The ground appears to suggest that the consideration regarding the adoption status of the respondent, was a valid factor that the RoT had applied in the exercise of his powers under ss 160 or 161 in his various decisions concerning the Property.  Again, such an argument is misconceived as well as inconsequential to the issues and matters that were before the trial Court.  This was also not a judicial review matter where the trial Court had to deliberate on for example the relevant or irrelevant considerations that could have been taken into account by the RoT in his various actions over the Property.

106.	I find this ground of appeal misconceived as well as baseless, and in so doing, I dismiss it.

GROUND 3.1 – GENERAL
107.	I now turn to ground 3.1.  This ground of appeal is also poorly pleaded.  But having heard from counsel at the hearing, it is clear that the appellant is challenging the trial Judge’s findings regarding constructive fraud, that is, based on the actions or inactions of the RoT in cancelling the respondent’s Title in the Property and in transferring it to third parties including the appellant.  The trial Judge drew his attention to ss 160 and 161 of the LRA, that is, based on his considerations and findings in his ruling.  In so doing, he was satisfied that there was sufficient evidence of existence of constructive fraud, to an extent that was sufficient enough to declare the appellant’s propriety interest in the Property null and void, and to transfer the Property to the respondent.

108.	The principle of indefeasibility of title applies in this jurisdiction.  I adopt and quote in [8] in Cannings J’s decision in John Wauwe v National Housing Corporation and Ors [2022] PGNC 2; N9382, as follows:

The principle of indefeasibility of title in regard to government land in Papua New Guinea dictates that under our Torrens Title system of land registration, once a lease of land from the State is registered, indefeasible title is conferred on the registered proprietor. Ours is a system of title by registration, not registration of title. This is subject only to the exceptions in s 33(1) (protection of registered proprietor) of the Land Registration Act, including s 33(1)(a), which states: “The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except ... in the case of fraud”

109.	Section 33(1)(a) of the LRA states:

33.	Protection of registered proprietor.
(1)	The registered proprietor of an estate or interest holds it absolutely free from all encumbrances except—
(a)	in the case of fraud; …
110.	The meaning of the term fraud has been answered in two-fold in this jurisdiction.  They are sometimes described as the narrow view and the wide view.  They have been extensively discussed in the case law.  To summarise, I refer to this Court’s summary of the two views in Lina Peyape and Ors v Peyapi Waiya [2021] PGSC 32; SC2109 as follows:

There are two opposing views propagated by this Court. The case of Mudge v The Secretary for Lands (1985) PNGLR 387 applies the traditional view of proving actual fraud while the case of Emas Estate Development Pty Ltd v John Mea & Ors (1993) PNGLR 215 has widened the scope of fraud to include constructive fraud. While both positions of law have been applied in the National Court consistently since their enunciation, the same cannot be said for this Court. There is now a strong line of Supreme Court judgments that have followed and applied the view expressed in Emas Estate Development Pty Ltd v John Mea & Ors (1993) PNGLR 215 and some of these cases are; PNG Deep Sea Fishing Ltd v Luke Critten (2010) SC1126, Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120, Kol Toki v Moeka Morea Helai (2016) SC1558, Pius Tikili v Home Base Real Estate Ltd (2017) SC1563, The National Council of Young Men’s Christian Association of PNG (Inc) v Firms Services Ltd (2017) SC1596 and PNG Bible Church Inc v Carol Mandi (2018) SC1724. These cases 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. Given this, there was nothing wrong with the primary judge following the case of Emas Estate Development Pty Ltd v John Mea & Ors (1993) PNGLR 215.

111.	Section 33(1)(a) quotes fraud as one of the reasons where one’s indefeasible title to a property may be overturned.  It does not, however, distinguish fraud as actual fraud or fraud as both actual and constructive fraud.  In my view, this dilemma may be a matter for the legislature or the parliament to rectify, if need be, at some point in time, or may be not.

112.	Without this, and the meantime, this Court has, in its effort to discharge its duty or dispense justice, taken the two views, which in my view are both correct which should be dependent upon the circumstances of each case that comes before the National Court in the first instance.  The wide view appears appropriate to the circumstances of this country, in my view, that is, when a court is dispensing justice in regard to issues that concerns fraud over land titles.  

113.	I have, as evident in my past judgments, supported the liberal or wide view.  I interpret s 33(1)(a) to include constructive fraud, and I also follow this Court’s line of authorities that have applied it since Emas Estate Development Pty Ltd v John Mea & Ors [1993] PNGLR 215.  I also concur with Cannings J where His Honour stated that constructive fraud, like actual fraud, must be established against or linked to the current registered proprietor.  Cases:  John Wauwe v National Housing Corporation and Ors (supra), Berr v Yango (No 2) [2015] PGNC 4; N5859 and Muku v Yama [2019] PGNC 334; N7948.  

CONSIDERATION – GROUND 3.1 
114.	I now draw my attention to the basis of the trial Judge’s findings on constructive fraud.

115.	Were the cancellations and transfers of the Title to the Property from the respondent over to Joshua and Lyia, from Joshua and Lyia over to Joshua, and from Joshua over to the appellant so unsatisfactory and irregular or unlawful, it was tantamount to fraud or constructive fraud as determined by the trial Court?

116.	I would answer that in the affirmative.  The best place to begin, in my view, is look at the affidavit that was provided by the RoT, that is, through the affidavit of Yanjol Apin, and also, the Title’s entry of the Owner’s copy of the Title to the Property.  Mr Apin stated at [6] of his affidavit (page 156 of the AB) that it was at the request of Timothy in 2014, that the respondent’s Title to the Property was cancelled on 5 May 2014.  Timothy by then, I observe, was not the registered proprietor of the Property, that is, having disposed of his interest in the Property to the respondent and Lyia as joint tenants, nine years ago.  So, it seems that according to the wish of a person who by then had no legal interest whatsoever to the Property, the RoT exercised his powers under s 161 of the LRA and cancelled the respondent’s propriety interest in the Property.  And then, upon further request from Timothy, the same person who had no legal right over the Property, the RoT transferred the Title in the Property over to third parties jointly where one of them was a deceased person.  The third parties were Joshua and Lyia.  Lyia by then had been dead for three years.  The RoT received a further request on the same day on 5 May 2014, to register the death of Lyia and declare Joshua as the sole proprietor of the Property.  The RoT carried out the said request accordingly and registered that onto the Title’s register.  Then seven months later, on 18 December 2014, not by Joshua, who would have by then been the purported registered Proprietor of the Property, but at the request of the same non-title holder of the Property, Timothy, the RoT transferred the Property to the appellant on 18 December 2014.

117.	Mr Apin continued at [8] of his affidavit where he, with respect, made this nonsensical deposition or claim, but which was consistent with the actions of the RoT as explained above, where he said:

I further advise the Honourable Court that Timothy Pipi who is the father and husband to all the persons named above always had the original owner’s copy of the title and requested through correspondences with the Office of the Registrar of Titles to register and cancel the transfer as he pleased at that time.  There was no contract of sale and transfers as it was a transfer within the family so was accepted and registered by the Registrar of Titles.

[Emphasis added]

118.	Such nonsensical claim is also evident in the appellant’s affidavit (page 105 of the AB).  At [22], she said:

Following from that the late Timothy Pipi, noted that Joshua Timothy his son was at the village and was not capable to maintain the subject property hence, he transferred the property to me on 18th December 2014.

119.	All these were taken into account by the trial Judge in his deliberation.

120.	The trial Judge also briefly discussed the powers and functions of the RoT, in particular, to issue summons upon a registered proprietor to surrender his or her title.  If that fails, then for the RoT to apply to the National Court to issue summons for the registered proprietor of the property concerned to appear in Court and show cause why his or her title should not be delivered up to the RoT for cancellation etc.  Sections 160 and 161 of the LRA read:

160.	Production of instruments wrongly issued, etc.
(1)	Where it appears to the satisfaction of the Registrar that—
(a)	an instrument has been—
(i)	issued to a person in error; or
(ii)	fraudulently or wrongly obtained by a person; or
(b)	an instrument is fraudulently or wrongly retained by a person; or
(c)	an instrument held by a person contains a misdescription of the boundaries, area or position of land; or
(d)	an instrument held by a person contains an entry or endorsement—
(i)	made in error; or
(ii)	fraudulently or wrongly obtained; or
(e)	an instrument of title is held by a party to an ejectment action whose right to the land has been determined,
he may summon that person to deliver up the instrument.
(2)	Where a person refuses or neglects to comply with a summons under Subsection (1), or cannot be found, the Registrar may apply to the Court to issue a summons for that person to appear before the Court and show cause why the instrument should not be delivered up.
(3)	Where a person served with a summons issued under Subsection (2) refuses or neglects to attend before the Court at the time appointed by the summons, the Court may issue a warrant directing the person so summoned to be apprehended and brought before the Court for examination.
(4)	On the appearance before the Court of a person summoned under Subsection (2), or apprehended by the warrant under Subsection (3), the Court may examine him on oath and order him to deliver up the instrument.
(5)	Where a person refuses or neglects to comply with an order under Subsection (4), the Court may commit him to a corrective institution for a period not exceeding six months unless the instrument is sooner delivered up.
(6)	Where a person—
(a)	has absconded or keeps out of the way so that a summons under Subsection (2) cannot be served on him; or
(b)	has refused or neglected to comply with an order under Subsection (4),
the Registrar shall, if the circumstances of the case so require—
(c)	issue to the proprietor of the land an instrument as provided in this Act in the case of a certificate of title lost or destroyed; and
(d)	enter in the Register—
(i)	notice of the issue of an instrument and the circumstances under which it was issued; and
(ii)	such other particulars as he thinks necessary.
161.	Cancellation and correction of instruments and entries.
(1)	Subject to Subsection (2), the Registrar may—
(a)	cancel or correct an instrument delivered up under Section 160; and
(b)	in any other case, on such evidence as appears to him sufficient, correct errors or omissions in—
(i)	the Register or an entry in the Register; or
(ii)	the other duplicate certificate of title or an entry on that duplicate.
(2)	Where a correction is made under Subsection (1)—
(a) the Registrar—
(i)	shall not erase or render illegible any words; and
(ii)	shall affix the date on which the correction was made together with his initials; and
(b)	the Register or other duplicate certificate of title so corrected has the same validity and effect as if the error had not been made except as regards an entry made in the Register before the time of correcting the error.
(3)	Where the Registrar is satisfied that a matter in a certificate of title does not affect the land to which the certificate relates he may record on the title the cancellation of that matter in such manner as he considers proper.
121.	The trial Court noted or established that the requirements were not duly carried out or observed by the RoT, and in particular, the requirement to give the respondent, who was then the registered proprietor of the Property, a right to be heard or to natural justice.  There are case authorities that support this requirement or necessity, that is, for a registered proprietor to be given an opportunity to be heard or be summoned before his or her title may be cancelled.  The National Court cases include Timothy Alex Aipa v Samson & Ors [2012] PGNC 185; N4777, Raina No 1 Ltd v Elisha [2015] PNGNC 158; N6051, and Raumai No 18 Ltd v Country Motors Ltd [2018] PNGNC 592; N7952.  This Court recently in Jaro Investment Ltd v Ane [2022] PGSC 5; SC2192 upheld Timothy Alex and Raumai No 18 Ltd, and held in particular as follows:

(1)	If a registered proprietor fails to comply with a summons issued by the Registrar under s 160(1) of the Land Registration Act to deliver up an instrument such as a State Lease, the Registrar must, before deciding to cancel the instrument under s 161 of the Act, follow the procedure in ss 160(2) to (6), including applying to the National Court for a summons for the registered proprietor to appear before the Court and show cause why the instrument should not be delivered up.

122.	I will refrain from fully considering and discussing in detail ss 160 and 161, that is, other than to briefly state them as I have herein.  And as I will also explain in my summary below, the actions of the RoT in the matter were outside the ambits of ss 160 and 161 as well as the provisions of the LRA in general, that is, for transfer, cancellation or registration of a legal or propriety interest of a state lease.
  
123.	I find no error committed by the trial Court.  In my view, the trial Judge, based on the evidence that were presented, was entitled to conclude that there was no proper observance by the RoT, to the requirement or processes that are set out under ss 160 and 161 of the LRA.  As plainly revealed by Mr Api, who had given evidence for the RoT, that this was a family matter, and that Timothy was entitled to transfer the Title as he pleased at the time.  In other words, the RoT was entertaining Timothy in that fashion; his actions were therefore outside the processes stipulated under ss 160 and 161; they (i.e., the actions or inactions of the RoT) exceeded any breaches of natural justice or want of issuance of summonses as regarded by the trial Court; these coupled with the family connections, that is, Timothy, his widow the appellant and Timothy’s son Joshua.  These family members had arranged or had facilitated the transfer and cancellation of the respondent’s propriety interest in the Property, that is, by merely requesting, instructing or directing the RoT through Timothy.  Another significant factor which indicates such sinister or suspicious actions by these persons including the RoT, was to transfer the Title in the Property over to Lyia in 2014 (jointly with Joshua) when Lyia, who was the first legal wife of Timothy, had passed on three years earlier in 2011.  All these persons knew about her passing in 2011 yet they or Timothy had instructed the RoT to affect the said purported registration.  And finally, Joshua.  His propriety interest in the property was registered and then transferred seven months later whilst he was away in the village, according to the appellant’s own evidence.

124.	In my view, there were more than just sufficient reasons that existed that warranted the trial Court to reach such a conclusion and finding, that is, of the existence of constructive fraud in that matter. 

125.	I therefore dismiss ground 3.1 of the appeal.

SUMMARY
126.	I propose to dismiss the appeal.

127.	An order for cost is discretionary, and for this appeal, I would order cost to follow the event on a party/party basis to be taxed if not agreed.  For clarity, cost is awarded only against the first appellant in favour of the respondent.

Orders

1.)	The appeal be dismissed.
2.)	The first appellant pay the respondent’s costs of and incidental to the appeal, to be taxed if not agreed.
__________________________________________________________________
 Kumura Lawyers:  Lawyers for the First Appellant	
Solicitor General’s Office: Lawyers for the Second, Third and Fourth Appellants
Jeffersons Lawyers: Lawyers for the Respondent